<PAGE>
As filed with the Securities and Exchange Commission on June 8, 1999
Registration Statement No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<CAPTION>
<S> <C> <C>
PROVIDENT FINANCIAL GROUP, INC. Ohio 31-0982792
PROVIDENT CAPITAL TRUST II Delaware Applied For
PROVIDENT CAPITAL TRUST III Delaware Applied For
(Exact name of each (State or other jurisdiction of (I.R.S. Employer
Registrant as specified incorporation or organization) Identification Number)
in its charter)
</TABLE>
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One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2000
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
--------------
Mark Magee, Esq.
General Counsel
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2861
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
Lee Meyerson, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Telephone: (212) 455-2000
--------------
Approximate date of commencement of proposed sale to the public: From time to
time after the Registration Statement becomes effective as determined by market
conditions and other factors.
--------------
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. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
(Continued on following page)
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<PAGE>
(Continued from previous page)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Each Class of Proposed Maximum Aggregate Amount of
Securities to be Registered Offering Price(2)(3)(4) Registration Fee(5)
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<S> <C> <C>
Capital Securities of the
Trusts(1)...................
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Guarantees of Provident
Financial Group, Inc. of
Capital Securities issued by
the Trusts and certain back-
up obligations(6)...........
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Junior Subordinated Debentures
of Provident Financial Group,
Inc.(7).....................
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Total........................ $200,000,000 $55,600
</TABLE>
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(1) The "Trusts" refers to Provident Capital Trust II and Provident Capital
Trust III.
(2) Pursuant to General Instruction II.D to Form S-3, the Proposed Maximum
Aggregate Offering Price has been omitted for each class of securities but
has been listed for the aggregate amount of all securities registered
hereby.
(3) If any securities are issued at an original issue discount, then such
greater amount as shall result in aggregate proceeds of $200,000,000.
(4) The amount in the table has been estimated solely for purposes of
calculating the registration fee.
(5) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended (the "Securities Act").
(6) Includes the rights of holders of the capital securities under any
guarantees and certain back-up undertakings, comprised of the obligations
of Provident Financial Group, Inc. to provide certain indemnities in
respect of, and pay and be responsible for, certain costs, expenses, debts
and liabilities of each of the Trusts, other than with respect to the
capital securities and common securities of such Trust, and such
obligations of Provident Financial Group, Inc. as set forth in the amended
and restated declaration of trust of each Trust and the indenture, in each
case as further described in the registration statement. The guarantees,
when taken together with Provident Financial Group, Inc.'s obligations
under the related junior subordinated debentures, the indenture and the
related amended and restated declaration of trust, will provide a full and
unconditional guarantee on a subordinated basis by Provident Financial
Group, Inc. of payments due on the capital securities. No separate
consideration will be received for any guarantees or any such back-up
obligations.
(7) The junior subordinated debentures to be issued by Provident Financial
Group, Inc. and which are covered by this registration statement will be
purchased by the applicable Trust with the proceeds of the sale of the
corresponding series of capital securities. The junior subordinated
debentures may be distributed later, without additional consideration, to
the holders of each applicable series of capital securities of each of the
Trusts if the respective Trusts are dissolved and their assets are
distributed to the respective holders of such capital securities.
--------------
The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
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 or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
ii
<PAGE>
EXPLANATORY NOTE
This registration statement contains (1) a prospectus relating to capital
securities which may be offered by Provident Capital Trust II and Provident
Capital Trust III, the related guarantees by Provident Financial Group, Inc. of
the capital securities, and the junior subordinated debentures of Provident
Financial Group, Inc. that will be purchased with the proceeds of the capital
securities, and (2) a form of supplement to the prospectus relating to
particular series of the capital securities, the guarantees and the junior
subordinated debentures.
The prospectus supplement has been filed as part of this registration
statement because Provident Financial Group, Inc. expects that an offering of a
series of capital securities and related guarantee and junior subordinated
debentures will commence promptly upon the effectiveness of this registration
statement. Additional supplements to the prospectus will be filed with the
Securities and Exchange Commission, pursuant to Rule 424(b) under the
Securities Act, following the effectiveness of this registration statement as
required.
iii
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus supplement is not complete and +
+may be changed. The preliminary prospectus supplement 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 JUNE 8, 1999
PRELIMINARY PROSPECTUS SUPPLEMENT
(To prospectus dated , 1999)
$
PROVIDENT CAPITAL TRUST II
SKIS SM
% Subordinated Capital Income Securities
fully and unconditionally guaranteed by
PROVIDENT FINANCIAL GROUP, INC.
Maturity Date: , . Listing: New York Stock Exchange under the ticker
symbol .
Distributions: Quarterly, Issuer: Provident Capital Trust II, which is
beginning issuing the Capital Securities, will have
, 1999. no assets other than Junior Subordinated
Debentures issued by Provident Financial
Payable: Distributions may Group, Inc. These debentures will have
be postponed for essentially the same terms as the Capital
up to five years Securities. As a result, Provident
but not past the Capital Trust II can only make payments
maturity date. on the Capital Securities if Provident
Financial Group, Inc. first makes
Subordination: The Capital payments on the Junior Subordinated
Securities Debentures.
are
effectively
subordinated
to all
existing
and future
senior debt
of
Provident
Financial
Group, Inc.
and all
liabilities
of its
subsidiaries.
Investing in the capital securities involves risks. Risk Factors begin on page
S-7.
These securities are not deposits or other obligations of a bank. They are not
insured by the FDIC or any other government agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus supplement or the accompanying prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
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<TABLE>
<CAPTION>
Per Capital
Security Total
----------- -----
<S> <C> <C>
Public offering price......................................... $25 $
Proceeds to Provident Capital Trust II........................ $25 $
</TABLE>
Provident Financial Group, Inc. will pay underwriting commissions of $ per
capital security, which total $ .
Any accrued distributions on the capital securities from , 1999 should be
added to the public offering price.
Lehman Brothers expects the capital securities to be ready for delivery in
book-entry form only through The Depository Trust Company on or about ,
1999.
-----------
LEHMAN BROTHERS
, 1999
"SKIS" is a service mark owned by Lehman Brothers Inc.
<PAGE>
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
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Page
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<S> <C>
Summary Information Q&A.................................................. S-3
Risk Factors............................................................. S-6
Forward-Looking Statements............................................... S-8
Provident Financial Group, Inc. ......................................... S-9
Provident Capital Trust II............................................... S-9
Use of Proceeds.......................................................... S-10
Accounting Treatment..................................................... S-10
Regulatory Treatment..................................................... S-11
Capitalization........................................................... S-11
Selected Consolidated Financial Data..................................... S-12
Certain Terms of The Capital Securities.................................. S-13
Certain Terms of The Junior Subordinated Debentures...................... S-19
Relationship Among The Capital Securities, The Junior Subordinated
Debentures And The Guarantee............................................ S-22
United States Federal Income Tax Consequences............................ S-24
ERISA Considerations..................................................... S-28
Underwriting............................................................. S-31
</TABLE>
Prospectus
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus.................................................... 1
Where You Can Find More Information About Provident Financial Group,
Inc. ................................................................... 2
Summary.................................................................. 3
Provident Financial Group, Inc. ......................................... 4
The Trusts............................................................... 4
Use of Proceeds.......................................................... 5
Ratio of Earnings to Fixed Charges And Ratio of Earnings to Combined
Fixed Charges And Preferred Stock Dividends............................. 6
Description of The Preferred Securities.................................. 7
Description of The Guarantees............................................ 14
Description of The Junior Subordinated Debentures........................ 17
Book-Entry Issuance...................................................... 26
ERISA Matters............................................................ 29
Plan of Distribution..................................................... 29
Legal Opinions........................................................... 30
Experts.................................................................. 30
</TABLE>
S-2
<PAGE>
Summary Information Q&A
This summary highlights selected information from this prospectus supplement
and the accompanying prospectus to help you understand the capital securities.
It may not contain all the information that is important to you. You should
carefully read this entire prospectus supplement and the accompanying
prospectus to understand fully the terms of the capital securities and the
related guarantees and junior subordinated debentures, as well as the tax and
other considerations that are important to you in making a decision about
whether to invest in the capital securities. You should pay special attention
to the "Risk Factors" section of this prospectus supplement to determine
whether an investment in the capital securities is appropriate for you.
What is Provident Financial Group, Inc.?
We are a Cincinnati-based commercial banking and financial services company
organized under the laws of the State of Ohio. We have full service banking
operations in Ohio, northern Kentucky and southwestern Florida.
At March 31, 1999, we had total assets of $8.6 billion, loans and leases of
$5.9 billion, deposits of $5.6 billion and shareholders' equity of $712
million. We also service an additional $3.6 billion of loans and leases.
What is Provident Capital Trust II?
Provident Capital Trust II is a Delaware business trust. It was created by
us for the sole purpose of issuing the % subordinated capital income
securities and engaging in the other transactions described below.
There will be five trustees of Provident Capital Trust II. The three regular
trustees are our officers. The Chase Manhattan Bank will act as the property
trustee of Provident Capital Trust II, and Chase Manhattan Bank Delaware will
act as the Delaware trustee of Provident Capital Trust II.
What are the % subordinated capital income securities?
Each capital security will represent an undivided beneficial ownership
interest in the assets of Provident Capital Trust II. Each capital security
will entitle the holders to receive quarterly cash distributions as described
below.
What are Provident Capital Trust II's assets?
Provident Capital Trust II will sell its capital securities to the public
and its common securities to us. Provident Capital Trust II will use the
proceeds from these sales to buy a corresponding principal amount of % junior
subordinated debentures due 2029 from us. We will pay interest on the junior
subordinated debentures at the same rate and at the same times as Provident
Capital Trust II makes payments on the capital securities. Provident Capital
Trust II will use the payments it receives on the junior subordinated
debentures to make the corresponding payments on the capital securities. We
will guarantee payments made on the capital securities to the extent described
below. Both the junior subordinated debentures and the guarantee will be
subordinated to our and our subsidiaries' existing and future creditors.
When will you receive quarterly distributions and how much will you be paid?
If you purchase the capital securities, you will be entitled to receive
cumulative cash distributions at an annual rate of %. Distributions will
accrue from , 1999, and will be paid quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year, beginning , 1999,
unless they are deferred as described below.
When can payment of your distributions be deferred?
We can, on one or more occasions, defer the quarterly interest payments on
the junior subordinated debentures for up to twenty consecutive quarterly
periods. In other words, we may declare at our discretion up to a five year
interest payment moratorium on the junior subordinated debentures and may
choose to do that on more than one occasion. A deferral of interest payments
cannot extend, however, beyond the maturity date of the junior subordinated
S-3
<PAGE>
debentures, nor can we begin a new interest deferral period until we have paid
all accrued interest on the junior subordinated debentures from the previous
interest deferral period.
If we defer interest payments on the junior subordinated debentures,
Provident Capital Trust II will also defer distributions on the capital
securities. Any deferred distributions will accumulate additional amounts at an
annual rate of %, compounded quarterly. Once we pay all deferred interest
payments on the junior subordinated debentures, with accrued interest, we can
again postpone interest payments on the junior subordinated debentures as
described above.
During any period in which we defer interest payments on the junior
subordinated debentures, we will not and our subsidiaries will not do any of
the following, with certain limited exceptions:
. pay a dividend or make any other payment or distribution on our capital
stock;
. redeem, purchase or make a liquidation payment on any of our capital
stock;
. make an interest, principal or premium payment on, or repay, repurchase
or redeem, any of our debt securities that rank equally with or junior to
the junior subordinated debentures; or
. make any guarantee payment regarding debt securities of any of our
subsidiaries, if the guarantee ranks equally with or junior to the junior
subordinated debentures.
If we defer payments of interest on the junior subordinated debentures, the
junior subordinated debentures will at that time be treated as being issued
with original issue discount for United States federal income tax purposes.
This means you would be required to accrue interest income in an amount equal
to the deferred distributions on your capital securities, even though you will
not be receiving any cash distributions on your capital securities, and include
these amounts in your gross income for United States federal income tax
purposes. For more information, see below under the caption "United States
Federal Income Tax Consequences" in this prospectus supplement.
When can Provident Capital Trust II redeem the capital securities?
Provident Capital Trust II will redeem all of the outstanding capital
securities when the junior subordinated debentures are repaid at maturity. The
junior subordinated debentures are scheduled to mature on , 2029, although
we have the right in certain circumstances to shorten the maturity date to not
earlier than , . In addition, if we redeem any junior subordinated
debentures before their maturity, Provident Capital Trust II will use the cash
it receives on the redemption of the junior subordinated debentures to redeem,
on a proportionate basis, the capital securities and the common securities.
We can redeem the junior subordinated debentures before their maturity at
100% of their principal amount plus accrued and unpaid interest:
. in whole or in part on one or more occasions any time on or after ,
; and
. in whole at any time, if certain changes occur in tax or investment
company laws and regulations or in the treatment of the capital
securities for bank regulatory purposes. These circumstances are more
fully described below under the caption "Certain Terms of the Capital
Securities--Redemption" in this prospectus supplement.
We will not redeem the junior subordinated debentures unless we obtain the
prior approval of the Board of Governors of the Federal Reserve System to do
so, if then required under the Federal Reserve Board's capital rules.
How are the capital securities guaranteed?
We will fully and unconditionally guarantee the payments of all amounts due
on the capital securities to the extent Provident Capital Trust II has funds
available for payment of such distributions.
We also are obligated to pay most of the expenses and obligations of
Provident Capital
S-4
<PAGE>
Trust II (other than Provident Capital Trust II's obligations to make payments
on the capital securities and common securities, which are covered only by the
guarantee).
The guarantee does not cover payments when Provident Capital Trust II does
not have sufficient funds to make payments on the capital securities. In other
words, if we do not make a payment on the junior subordinated debentures,
Provident Capital Trust II will not have sufficient funds to make payments on
the capital securities, and the guarantee will not obligate us to make those
payments on Provident Capital Trust II's behalf. In addition, our obligations
under the guarantee are subordinate to our obligations to other creditors to
the same extent as the junior subordinated debentures.
When could the junior subordinated debentures be distributed to you?
We can dissolve Provident Capital Trust II at any time, subject to
obtaining:
. the prior approval of the Federal Reserve Board to do so, if then
required under the Federal Reserve Board's capital rules; and
. an opinion of independent counsel stating that the distribution of the
junior subordinated debentures will not be taxable to you.
If we dissolve Provident Capital Trust II, or if Provident Capital Trust II
dissolves because of certain other specified events (such as our bankruptcy),
Provident Capital Trust II will distribute the junior subordinated debentures
to holders of the capital securities and the common securities on a
proportionate basis.
Upon any dissolution, winding-up or liquidation of Provident Capital Trust
II involving the liquidation of the junior subordinated debentures, the holders
of the capital securities will be entitled to receive, out of assets held by
Provident Capital Trust II, subject to the rights of any creditors of Provident
Capital Trust II, the liquidation distribution in cash. Provident Capital Trust
II will be able to make this distribution of cash only if we redeem the junior
subordinated debentures.
Can the junior subordinated debentures' maturity be shortened?
If a change in tax law occurs that would permit us to redeem the junior
subordinated debentures, we will have the right to shorten the maturity of the
junior subordinated debentures provided that we receive the prior approval of
the Federal Reserve Board, if then required under the Federal Reserve Board's
capital rules. We may only shorten the maturity enough so that interest paid on
the junior subordinated debentures will continue to be tax deductible. The
shortened term of the junior subordinated debentures may not, however, be less
than years from the date of their original issuance.
Will the capital securities be listed on a stock exchange?
We expect that the capital securities will be approved for listing on the
New York Stock Exchange. If listed, trading is expected to commence within 30
days after the capital securities are first issued. You should be aware that
the listing of the capital securities will not necessarily ensure that an
active trading market will be available for the capital securities or that you
will be able to sell your capital securities at the price you originally paid
for them.
If Provident Capital Trust II distributes the junior subordinated
debentures, we will use our best efforts to list them on the New York Stock
Exchange or wherever the capital securities are then listed.
In what form will the capital securities be issued?
The capital securities will be represented by one or more global securities
that will be deposited with and registered in the name of The Depository Trust
Company, New York, New York. This means that you will not receive a certificate
for your capital securities and the capital securities will not be registered
in your name. For more details, see the information under the caption "Book-
Entry Issuance" in the accompanying prospectus.
S-5
<PAGE>
RISK FACTORS
Before purchasing any capital securities, you should read carefully this
prospectus supplement and the accompanying prospectus and pay special attention
to the following risk factors.
Because Provident Capital Trust II will rely on the payments it receives on
the junior subordinated debentures to fund all payments on the capital
securities, and because Provident Capital Trust II may distribute the junior
subordinated debentures in exchange for the capital securities, you are making
an investment regarding the junior subordinated debentures as well as the
capital securities. You should carefully review the information in this
prospectus supplement and the accompanying prospectus about the capital
securities, the guarantee and the junior subordinated debentures.
Holders of Our Senior Indebtedness Will Get Paid Before You Will Get Paid Under
the Guarantee
Our obligations to you under the junior subordinated debentures and the
guarantee will be junior in right of payment to all of our existing and future
senior debt. This means that we cannot make any payments to you on the junior
subordinated debentures or the guarantee if we are in default on any of our
senior debt. Therefore, in the event of our bankruptcy, liquidation or
dissolution, our assets must be used to pay off our senior obligations in full
before any payments may be made on the junior subordinated debentures or the
guarantee.
As of March 31, 1999, we had outstanding senior debt of approximately $227.2
million. Moreover, the indenture pursuant to which the junior subordinated
debentures will be issued, the guarantee and the declaration of trust which
created Provident Capital Trust II do not limit our ability to incur additional
senior debt.
For more information, see below under the captions "Description of the
Junior Subordinated Debentures--Ranking" and "Description of the Guarantees--
Ranking" in the accompanying prospectus.
Our Results of Operations Depend Upon the Results of Operations of Our
Subsidiaries
We are a holding company which conducts substantially all of our operations
through our bank and other subsidiaries. As a result, our ability to make
payments on the junior subordinated debentures and the guarantee will depend
primarily upon the receipt of dividends and other distributions from our
subsidiaries.
There are various regulatory restrictions on the ability of our banking
subsidiaries, including our principal subsidiary, to pay dividends or make
other payments to us. At March 31, 1999, our banking subsidiaries could pay a
total of approximately $210.8 million in dividends to us without prior
regulatory approval.
In addition, our right to participate in any distribution of assets of any
of our subsidiaries, including our principal subsidiary, upon the subsidiary's
liquidation or otherwise, and thus your ability as a holder of the capital
securities to benefit indirectly from such distribution, will be subject to the
prior claims of creditors of that subsidiary, except to the extent that any of
our claims as a creditor of such subsidiary may be recognized. As a result, the
capital securities will effectively be subordinated to all existing and future
liabilities and obligations of our subsidiaries. Therefore, holders of the
capital securities should look only to our assets for payments on the capital
securities. Further, the junior subordinated debentures and the guarantee also
will be effectively subordinated to all existing and future obligations of our
subsidiaries.
At March 31, 1999, our subsidiaries had outstanding debt and other
liabilities, including deposits, of approximately $7.6 billion.
If We Do Not Make Payments on the Junior Subordinated Debentures, Provident
Capital Trust II Will Not Be Able to Pay Distributions and Other Payments on
the Capital Securities and the Guarantee Will Not Apply
Provident Capital Trust II's ability to make timely distribution and
redemption payments on the capital securities is completely dependent upon
S-6
<PAGE>
our making timely payments on the junior subordinated debentures. If we default
on the junior subordinated debentures, Provident Capital Trust II will lack
funds for the payments on the capital securities. If this happens, holders of
capital securities will not be able to rely upon the guarantee for payment of
such amounts because the guarantee only guarantees that we will make
distribution and redemption payments on the capital securities if Provident
Capital Trust II has the funds to do so itself but does not.
Instead, you or the property trustee may proceed directly against us for
payment of any amounts due on the capital securities of such holder.
For more information, see below under the caption "Certain Terms of the
Capital Securities--Trust Enforcement Events" in this prospectus supplement.
Distributions on the Capital Securities Could Be Deferred; You May Have to
Include Interest in Your Taxable Income Before You Receive Cash
As long as the junior subordinated debentures are not in default, we can, on
one or more occasions, defer interest payments on the junior subordinated
debentures for up to twenty consecutive quarters, but not beyond the maturity
date of the junior subordinated debentures. Because interest payments on the
junior subordinated debentures fund the distributions on the capital
securities, each such deferral would result in a corresponding deferral of
distributions on the capital securities.
We do not intend to defer interest payments on the junior subordinated
debentures. However, if we do so in the future, the capital securities may
trade at a price that does not reflect fully the value of the accrued but
unpaid distributions. Even if we do not do so, our right to defer interest
payments on the junior subordinated debentures could mean that the market price
for the capital securities may be more volatile than that of other securities
without interest deferral rights.
If we defer interest payments on the junior subordinated debentures, you
will be required to accrue interest income for United States federal income tax
purposes in respect of your proportionate share of the accrued but unpaid
interest on the junior subordinated debentures held by Provident Capital Trust
II, even if you normally report income when received. As a result, you will be
required to include the accrued interest in your gross income for United States
federal income tax purposes prior to your receiving any cash distribution. If
you sell your capital securities prior to the record date for the first
distribution after a deferral period, you will never receive the cash from us
related to the accrued interest that you reported for tax purposes.
For more information regarding the tax consequences of purchasing the
capital securities, see below under the caption "United States Federal Income
Tax Consequences--Interest Income and Original Issue Discount" and "--Sales of
Capital Securities or Redemption of Junior Subordinated Debentures" in this
prospectus supplement.
The Capital Securities May Be Redeemed Prior to Maturity; You May Be Taxed on
the Proceeds and You May Not Be Able to Reinvest the Proceeds at the Same or a
Higher Rate of Return
Generally, the junior subordinated debentures (and therefore the capital
securities) may not be redeemed prior to , . However, if certain
special events occur relating to changes in tax law, the Investment Company Act
of 1940 or the treatment of the capital securities for bank regulatory capital
purposes, then we will be able, subject to receipt of any necessary Federal
Reserve Board approval, to redeem all of the junior subordinated debentures at
a price equal to 100% of their principal amount plus any accrued and unpaid
interest. If such a redemption happens, Provident Capital Trust II must use the
redemption price it receives to redeem all of the capital securities.
Under current United States federal income tax law, the redemption of the
capital securities would be a taxable event to you.
In addition, you may not be able to reinvest the money that you receive in
the redemption at a
S-7
<PAGE>
rate that is equal to or higher than the rate of return on the capital
securities.
We Generally Will Control Provident Capital Trust II Because Your Voting Rights
Are Very Limited; Your Interests May Not Be the Same As Ours
You will only have limited voting rights. In particular, you may not elect
and remove any trustees, except when there is a default under the junior
subordinated debentures. If such a default occurs, a majority in liquidation
amount of the holders of the capital securities would be entitled to remove or
appoint the property trustee and the Delaware trustee.
For more information, see below under the caption "Provident Capital Trust
II" in this prospectus supplement.
Federal Banking Authorities May Restrict the Ability of Provident Capital Trust
II to Make Distributions on or Redeem the Capital Securities
Federal banking authorities will have the right to examine Provident Capital
Trust II and its activities because Provident Capital Trust II is our
subsidiary. Under certain circumstances, including any determination that our
relationship to Provident Capital Trust II would result in an unsafe and
unsound banking practice, these banking authorities have the authority to issue
orders which could restrict the ability of Provident Capital Trust II to make
distributions on or to redeem the capital securities.
An Active Trading Market For the Capital Securities May Not Develop
We expect that the capital securities will be approved for listing on the
New York Stock Exchange within 30 days after issuance. However, the listing of
the capital securities on an exchange does not guarantee that an active market
will be available for the capital securities or that you will be able to sell
your capital securities at the price you originally paid for them.
If the capital securities are not approved for listing on the New York Stock
Exchange, the underwriters have indicated that they expect to continue market-
making activities in the capital securities. They are not obligated to do so,
however, and could discontinue those activities at any time.
FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus and the information
incorporated by reference in them include forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. These statements relate to expectations
concerning matters that are not historical facts. Some of the forward-looking
statements can be identified by the use of forward-looking words such as
"believes", "expects", "may", "will", "should", "seeks", "approximately",
"intends", "plans", "estimates", "anticipates" or the negative version of those
words or other comparable terminology. Forward-looking statements involve
inherent risks and uncertainties. A number of important factors could cause our
actual results to differ materially from those in the forward-looking
statements. Some factors include fluctuations in interest rates, inflation,
government regulations, and economic conditions and competition in the
geographic and business areas in which we conduct our operations. For a
discussion of factors that could cause actual results to differ, see the
information contained in our publicly available filings with the SEC. These
filings are described under the caption "Where You Can Find More Information
About Provident Financial Group, Inc." in the accompanying prospectus.
S-8
<PAGE>
PROVIDENT FINANCIAL GROUP, INC.
PROVIDENT CAPITAL TRUST II
Our Plan for Expansion
Internal Growth and Acquisitions
We expanded our franchise in recent years through internal growth and
acquisitions. Business lines that we expanded to operate at a national level
include Provident Capital Corp. (a middle-market structured finance products
division), Provident Commercial Group and Information Leasing Corporation
(commercial leasing divisions) and Provident Consumer Financial Services (a
mortgage loan division).
Banking Services Expansion
We currently conduct our banking operations through The Provident Bank (in
Ohio) and Provident Bank of Florida.
We expanded our banking services through the acquisition of Florida
Gulfcoast Bancorp, Inc. located in Sarasota, Florida and South Hillsborough
Community Bank located in Hillsborough County, Florida. Further, the Provident
Bank of Kentucky merged into The Provident Bank on March 23, 1998.
Contact Information
Our executive offices are located at One East Fourth Street, Cincinnati,
Ohio 45202 and our Investors Relations telephone number is (513) 345-7102 or
800-851-9521.
Purpose and Ownership of Provident Capital Trust II
Provident Capital Trust II is a business trust recently organized under
Delaware law by the trustees and us. Provident Capital Trust II is being
established solely for the following purposes:
. to issue and sell the capital securities, which represent undivided
beneficial ownership interests in Provident Capital Trust II's assets;
. to issue and sell the common securities to us in a total liquidation
amount equal to 3% of Provident Capital Trust II's total capital;
. to use the proceeds from the sale of the common securities and the
capital securities to acquire the junior subordinated debentures from us;
and
. to engage in other activities that are directly related to the activities
described above, such as registering the transfer of the capital
securities.
Because Provident Capital Trust II is being established only for the
purposes listed above, the junior subordinated debentures will be Provident
Capital Trust II's sole assets. Payments on the junior subordinated debentures
will be Provident Capital Trust II's sole source of income.
As issuer of the junior subordinated debentures, we will pay:
. all fees, expenses and taxes related to Provident Capital Trust II and
the offering of the capital securities; and
. all ongoing costs, expenses and liabilities of Provident Capital Trust
II, except obligations to make distributions and other payments on the
common securities and the capital securities.
For so long as the capital securities remain outstanding, we will:
. own, directly or indirectly, all of the common securities;
. cause Provident Capital Trust II to remain a business trust and not to
voluntarily dissolve, wind-up, liquidate or be terminated, except as
permitted by the declaration of trust by which Provident Capital Trust II
was created;
. use our commercially reasonable efforts to ensure that Provident Capital
Trust II will not be an "investment company" for purposes of the
Investment Company Act of 1940; and
. take no action that would be reasonably likely to cause Provident Capital
Trust II to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes.
S-9
<PAGE>
USE OF PROCEEDS
ACCOUNTING TREATMENT
The Trustees
The business and affairs of Provident Capital Trust II will be conducted by
its five trustees. The three regular trustees will be individuals who are our
employees. The fourth trustee, The Chase Manhattan Bank, as property trustee,
will hold title to the junior subordinated debentures for the benefit of the
holders of the capital securities and will have the power to exercise all the
rights and powers of a registered holder of the junior subordinated debentures.
The fifth trustee, Chase Manhattan Bank Delaware, as Delaware trustee,
maintains its principal place of business in Delaware and meets the
requirements of Delaware law for Delaware business trusts. In addition, The
Chase Manhattan Bank, as guarantee trustee, will hold the guarantee for the
benefit of the holders of the capital securities.
We have the sole right to appoint, remove and replace the trustees of
Provident Capital Trust II, unless an event of default occurs with respect to
the junior subordinated debentures. In that case, the holders of a majority in
liquidation amount of the capital securities will have the right to remove and
appoint the property trustee and the Delaware trustee.
Additional Information
For additional information concerning Provident Capital Trust II, see below
under the caption "Provident Capital Trust II" in the accompanying prospectus.
We anticipate that Provident Capital Trust II will not be required to file any
reports with the SEC after the issuance of the capital securities. As discussed
below under the caption "Accounting Treatment" in this prospectus supplement,
we will provide certain information concerning Provident Capital Trust II and
the capital securities in the financial statements included in our own periodic
reports to the SEC.
Office of Provident Capital Trust II
The executive office of Provident Capital Trust II is c/o Provident
Financial Group, Inc., One East Fourth Street, Cincinnati, Ohio 45202,
Attention: General Counsel, and its telephone number is (513) 579-2861.
The Trust will invest all the proceeds from the sale of the capital
securities in the junior subordinated debentures.
We expect to use the proceeds from the sale of the junior subordinated
debentures for general corporate purposes, which may include the repayment of
debt, investments in or extensions of credit to its subsidiaries and the
financing of possible acquisitions. We currently have no agreements,
arrangements or understandings regarding possible material acquisitions.
Pending such use, the net proceeds may be temporarily invested in short-term
obligations. The precise amounts and timing of the application of the proceeds
will depend upon our funding requirements and the availability of other funds.
For financial reporting purposes, Provident Capital Trust II will be treated
as our subsidiary, and its accounts will be included in our consolidated
financial statements.
In our future financial reports, we will:
. present the junior subordinated debentures as part of a separate line
item on our consolidated balance sheets, as a component of long-term
debt;
. record distributions payable on the capital securities as an expense; and
. include a footnote in our consolidated financial statements stating that
the sole assets of Provident Capital Trust II are junior subordinated
debentures issued by us and providing information about the capital
securities, the junior subordinated debentures and the guarantee.
S-10
<PAGE>
REGULATORY TREATMENT
We are required by the Federal Reserve Board to maintain certain levels of
capital for bank regulatory purposes. We expect that the capital securities
will be treated as Tier 1 capital for these purposes.
CAPITALIZATION
We provide in the table below our to give effect to the issuance of
and our subsidiaries' audited the capital securities.
historical consolidated capitalization
at March 31, 1999 and as adjusted
<TABLE>
<CAPTION>
March 31, 1999
----------------------
As
Actual Adjusted
---------- ----------
(dollars in
thousands)
<S> <C> <C>
Long-Term Debt:........................................ $ 805,440 $ 805,440
---------- ----------
Guaranteed Preferred Beneficial Interests in
Provident's Junior Subordinated Debentures(a):........ $ 98,894 $ 198,894
---------- ----------
Shareholders' Equity:
Preferred Stock(b)................................... $ 7,000 $ 7,000
Common Stock(c)...................................... 12,817 12,817
Capital Surplus...................................... 225,702 225,702
Retained Earnings.................................... 514,001 514,001
Treasury Stock(d).................................... (30,070) (30,070)
Accumulated Other Comprehensive Income(e)............ (16,978) (16,978)
---------- ----------
Total Shareholders' Equity......................... 712,472 712,472
---------- ----------
Total Capitalization............................. $1,616,806 $1,716,806
========== ==========
</TABLE>
- --------
(a) Shown net of discount.
(b) Preferred Stock, 5,000,000 shares authorized, Series "D", 70,272 issued.
(c) Common Stock, no par value, 110,000,000 shares authorized, 43,383,979
issued.
(d) 801,800 shares.
(e) Consists entirely of unrealized loss on marketable securities (net of
deferred income taxes).
S-11
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
We provide in the table below our the consolidated financial statements
selected consolidated financial data. that are incorporated by reference in
You should read the data below with the accompanying prospectus under the
the more detailed information, caption "Where You Can Find More
consolidated financial statements and Information About Provident".
the notes to
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
---------------------- ----------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---------- ---------- ---------- ---------- ---------- ----------
(Dollars in Thousands Except Per Share Amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Total Interest Income... $ 157,475 $ 147,186 $ 633,760 $ 571,812 $ 520,325 $ 462,396 $ 345,829
Total Interest Expense.. (84,711) (80,510) (347,067) (309,212) (280,257) (259,747) (163,871)
Net Interest Income..... 72,764 66,676 286,693 262,600 240,068 202,649 181,958
Provision for Loan and
Lease Losses........... (12,900) (5,000) (31,200) (44,750) (47,000) (14,000) (12,000)
Noninterest Income...... 64,567 49,705 222,987 172,658 101,437 61,837 38,468
Noninterest Expense..... (72,297) (64,631) (302,406) (225,978) (175,162) (143,320) (120,889)
Income Before Income
Taxes.................. 52,134 46,750 176,074 164,530 119,343 107,166 87,537
Applicable Income
Taxes.................. (18,379) (16,090) (61,122) (57,093) (41,198) (35,306) (29,871)
Net Income(a)........... $ 33,755 $ 30,660 $ 114,952 $ 107,437 $ 78,145 $ 71,860 $ 57,666
---------- ---------- ---------- ---------- ---------- ---------- ----------
Per Common Share Data:
Basic Earnings(a)....... $ 0.79 $ 0.71 $ 2.66 $ 2.59 $ 1.96 $ 1.98 $ 1.56
Diluted Earnings(a)..... 0.76 0.68 2.56 2.45 1.87 1.75 1.40
Dividends Paid.......... 0.22 0.20 0.80 0.72 0.54 0.47 0.42
Book Value.............. 16.57 15.26 16.29 14.69 12.54 10.78 9.16
Balances at Period End:
Total Investment
Securities............. $1,723,954 $1,631,035 $1,514,153 $1,381,707 $1,028,207 $ 959,904 $ 685,920
Total Loans and Leases.. 5,937,622 5,265,159 5,623,505 5,051,842 5,311,448 4,896,076 4,204,538
Total Managed Loans and
Leases................. 9,585,804 7,255,920 8,843,543 6,584,528 5,568,709 4,896,076 4,204,538
Reserve for Loan and
Lease Losses........... 80,142 72,837 75,907 71,980 66,693 60,235 51,979
Total Assets............ 8,633,224 7,683,595 8,134,987 7,106,859 6,824,388 6,205,351 5,411,491
Noninterest Bearing
Deposits............... 680,737 595,321 669,840 605,166 554,262 523,631 452,458
Interest Bearing
Deposits............... 4,940,588 4,357,983 4,657,481 4,091,132 4,042,218 3,654,920 3,616,191
Total Deposits.......... 5,621,325 4,953,304 5,327,321 4,696,298 4,596,480 4,178,551 4,068,649
Long-Term Liabilities... 904,334 776,330 1,033,173 786,974 949,913 820,083 383,433
Total Shareholders'
Equity................. 712,472 661,701 703,854 626,341 513,750 432,537 359,351
Other Statistical
Information:
Return on Average
Assets(a).............. 1.55% 1.67% 1.45% 1.56% 1.23% 1.29% 1.24%
Return on Average
Equity(a).............. 18.62% 19.06% 16.61% 19.13% 17.03% 18.37% 16.64%
Dividend Payout Ratio... 28.16% 28.56% 30.72% 28.15% 28.12% 26.17% 30.62%
Capital Ratios at Period
End:
Total Equity to Total
Assets................. 8.25% 8.61% 8.65% 8.81% 7.53% 6.97% 6.64%
Tier 1 Leverage Ratio... 9.14% 10.01% 9.00% 9.94% 8.97% 7.13% 7.21%
Tier 1 Capital to Risk-
Weighted Assets........ 8.59% 9.74% 8.55% 9.67% 9.19% 7.52% 7.86%
Tier 2 Capital to Risk-
Weighted Assets........ 2.22% 3.29% 2.60% 3.44% 3.81% 4.25% 4.99%
Total Risk-Based Capital
to Risk-Weighted
Assets................. 10.81% 13.03% 11.15% 13.11% 13.00% 11.77% 12.85%
Loan Quality Ratios at
Period End:
Reserve for Loan and
Lease Losses to Total
Loans and Leases....... 1.35% 1.38% 1.35% 1.42% 1.26% 1.23% 1.24%
Reserve for Loan and
Lease Losses to
Nonperforming Loans.... 169.85% 138.10% 178.30% 153.82% 304.51% 142.57% 714.29%
Nonperforming Loans to
Total Loans and
Leases................. 0.79% 1.00% 0.76% 0.93% 0.41% 0.86% 0.17%
Net Charge-Offs to
Average Net Loans and
Leases................. 0.58% 0.32% 0.48% 0.78% 0.85% 0.13% 0.02%
(a) Selected Financial
Data on Operating
Income follows:
(excludes Special
Charges and Exit Costs
(12/31/98) and One-
Time Deposit Insurance
Charge (12/31/96))
Net Income.............. $ 33,755 $ 30,660 $ 129,255 $ 107,437 $ 83,450 $ 71,860 $ 57,666
Basic Earnings.......... 0.79 0.71 2.99 2.59 2.09 1.98 1.56
Diluted Earnings........ 0.76 0.68 2.88 2.45 1.99 1.75 1.40
Return on Average
Assets................. 1.55% 1.67% 1.63% 1.56% 1.31% 1.29% 1.24%
Return on Average
Equity................. 18.62% 19.06% 18.67% 19.13% 18.18% 18.37% 16.64%
</TABLE>
S-12
<PAGE>
CERTAIN TERMS OF THE CAPITAL SECURITIES
We have summarized below certain terms of the capital securities. This
summary supplements the general description of the capital securities in the
accompanying prospectus. To the extent that this summary is inconsistent with
the description in the accompanying prospectus, you should rely on the summary
below. This summary is not a complete description of all of the terms and
provisions of the capital securities. For more information, we refer you to the
declaration of trust, the form of the amended and restated declaration of trust
and the form of preferred securities (which will be substantially similar to
the form of the capital securities), which we filed as exhibits to the
registration statement of which the prospectus is a part.
The capital securities represent undivided beneficial ownership interests in
the assets of Provident Capital Trust II. The only assets of Provident Capital
Trust II will be the junior subordinated debentures. The capital securities
will rank equally with the common securities except as described below under
the caption "--Subordination of Common Securities" in this section.
Distributions
Distributions on the capital securities are cumulative and will accumulate
from , 1999 at the annual rate of % of the liquidation amount of $25 for
each capital security. Distributions will be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, beginning ,
1999. The amount of distributions payable for any period will be computed on
the basis of a 360 day year comprised of twelve 30 day months. The amount of
distributions payable for any period shorter than a full quarterly period will
be computed on the basis of a 30 day month and, for periods of less than a
month, the actual number of days elapsed per 30 day month.
Distributions not paid when due will accumulate additional distributions at
the annual rate of % on the amount of unpaid distributions, compounded
quarterly. When we refer to any payment of distributions, the term
"distributions" includes any such additional accumulated distributions.
If distributions are payable on a date that is not a "business day", payment
will be made on the next business day and without any interest or other payment
as a result of such delay. However, if the next business day is in the next
calendar year, payment of distributions will be made on the preceding business
day. A "business day" means each day except Saturday, Sunday and any day on
which banking institutions in The City of New York are authorized or required
by law to close or on which the corporate trust office of the property trustee
or the indenture trustee is closed for business.
Distributions on the capital securities will only be paid if Provident
Capital Trust II has sufficient funds available to make such payments.
Provident Capital Trust II's income available for the payment of distributions
will be limited to our payments made on the junior subordinated debentures. As
a result, if we do not make interest payments on the junior subordinated
debentures, then Provident Capital Trust II will not have funds to make
distributions on the capital securities.
Deferral of Distributions
If the junior subordinated debentures are not in default, we can, on one or
more occasions, defer interest payments on the junior subordinated debentures
for up to twenty consecutive quarterly interest payment periods. A deferral of
interest payments cannot extend, however, beyond the maturity date of the
junior subordinated debentures. If we defer interest payments on the junior
subordinated debentures, Provident Capital Trust II also will defer
distributions on the capital securities. During a deferral period, interest on
the junior subordinated debentures will accrue and compound quarterly at the
annual rate of % and, as a result, distributions otherwise due to you would
continue to accumulate, to the extent permitted by applicable law, from the
date that these distributions were due.
S-13
<PAGE>
Once we make all deferred interest payments on the junior subordinated
debentures, we again can defer interest payments on the junior subordinated
debentures as discussed above. As a result, there could be multiple periods of
varying length during which you would not receive cash distributions from
Provident Capital Trust II.
We currently do not intend to defer interest payments on the junior
subordinated debentures. If we defer such interest payments, however, neither
we nor our subsidiaries generally will be permitted to pay dividends on or
repurchase shares of our capital stock or make payments on debt securities or
guarantees that rank on a par with or junior to the junior subordinated
debentures and the guarantee. These limitations are described in greater detail
below under the caption "Certain Terms of the Junior Subordinated Debentures--
Option to Defer Interest Payments" in this prospectus supplement.
If we choose to defer payments of interest on the junior subordinated
debentures, then the junior subordinated debentures would at that time be
treated as being issued with original issue discount for United States federal
income tax purposes. This means you will be required to include your share of
the accrued but unpaid interest on the junior subordinated debentures in your
gross income for United States federal income tax purposes before you receive
cash distributions from Provident Capital Trust II. This treatment will apply
as long as you own capital securities. For more information, see below under
the caption "United States Federal Income Tax Consequences--Interest Income and
Original Issue Discount" in this prospectus supplement.
Payment of Distributions
Distributions on the capital securities will be payable to holders on the
relevant record date. As long as the capital securities are only in book-entry
form, the record date for the payment of distributions will be one business day
before the distribution date. If the capital securities are ever issued in
certificated form, the record date for the payment of distributions will be
determined by the regular trustees and will be at least one business day before
the relevant payment date. Distributions payable on any capital securities that
are not paid on the scheduled distribution date will cease to be payable to the
person in whose name such capital securities are registered on the relevant
record date, and such defaulted distribution will instead be payable to the
person in whose name such capital securities are registered on a special record
date set for this purpose.
Payments on the capital securities while they are in book-entry form will be
made in immediately available funds to DTC, the depositary for the capital
securities.
Redemption
We may redeem the junior subordinated debentures before their maturity:
. in whole or in part on one or more occasions any time on or after ,
; and
. in whole at any time, if certain changes occur in tax or investment
company laws and regulations, or in the treatment of the capital
securities for bank regulatory capital purposes. These events, which we
refer to as "Special Events", are described in detail below under the
caption "--Redemption Upon a Special Event".
We may not redeem the junior subordinated debentures unless we receive the
prior approval of the Federal Reserve Board to do so, if that approval is then
required under the Federal Reserve Board's capital rules. The redemption price
for the junior subordinated debentures is 100% of their principal amount plus
accrued and unpaid interest.
General
When we repay the junior subordinated debentures, either at maturity on
, 2029 (or any earlier maturity date that may be set by us in certain
circumstances, as described below) or upon early redemption (as discussed
above), Provident Capital Trust II will use the cash it receives from the
repayment or redemption of the junior subordinated debentures to redeem a
corresponding amount of the capital securities and common securities.
S-14
<PAGE>
If less than all the capital securities and the common securities are
redeemed, the total amount of the capital securities and the common securities
to be redeemed will be allocated proportionately among the capital securities
and common securities, unless an event of default under the junior subordinated
debentures or similar event has occurred, as described below under the caption
"--Subordination of Common Securities" in this section.
Redemption Upon a Special Event
If a Special Event has occurred and is continuing, and we cannot cure that
event by some reasonable action, then we may redeem the junior subordinated
debentures within 90 days following the occurrence of the Special Event. A
"Special Event" means, for these purposes, the occurrence of a "Tax Event", a
"Regulatory Capital Event" or an "Investment Company Event". We summarize each
of these events below.
A "Tax Event" means the receipt by Provident Capital Trust II of an opinion
of independent tax counsel experienced in such matters, to the effect that, as
a result of
. any amendment to, change in or announced proposed change in the laws or
regulations interpreting such laws of the United States or any political
subdivision or taxing authority; or
. any official administrative pronouncement, action or judicial decision
interpreting or applying such laws or regulations;
which amendment or change becomes effective, or proposed change, pronouncement,
action or decision is announced, on or after the date of this prospectus
supplement, there is more than an insubstantial risk currently or within the 90
days following such opinion that:
. Provident Capital Trust II will be subject to United States federal
income tax regarding income received or accrued on the junior
subordinated debentures;
. interest payable by us on the junior subordinated debentures will not be
deductible by us, in whole or in part, for United States federal income
tax purposes; or
. Provident Capital Trust II will be subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that we shall have received an opinion of
independent bank regulatory 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
rules, guidelines or policies of the Federal Reserve System; or
. any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
which amendment or change is effective or pronouncement or decision is
announced on or after the date of original issuance of the capital securities,
the capital securities do not constitute, or within 90 days following the date
of such opinion, will not constitute Tier 1 capital or its equivalent at the
time.
An "Investment Company Event" means the receipt by Provident Capital Trust
II of an opinion of a nationally recognized independent counsel to the effect
that, as a result of:
. a change in law or regulation; or
. a written change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that Provident Capital Trust II will
be considered an "investment company" under the Investment Company Act of 1940
that is required to be registered under this law on or after the date of the
issuance of the capital securities.
If we do not elect to redeem the junior subordinated debentures following a
Special Event, then the capital securities will remain outstanding until the
repayment of the junior
S-15
<PAGE>
subordinated debentures, unless we liquidate Provident Capital Trust II and
distribute the junior subordinated debentures to you. For more information, see
"--Optional Liquidation of Provident Capital Trust II and Distribution of
Junior Subordinated Debentures" in this section.
Redemption Procedures
Provident Capital Trust II will give you at least 30 days' but not more than
60 days' notice before any redemption of capital securities. To the extent
funds are available for payment, Provident Capital Trust II will irrevocably
deposit with DTC sufficient funds to pay the redemption amount for the capital
securities being redeemed. Provident Capital Trust II also will give DTC
irrevocable instructions and authority to pay the redemption amount to its
participants. Any distribution to be paid on or before a redemption date for
any capital securities called for redemption will be payable to the registered
holders on the record date for the distribution.
Once notice of redemption is given and Provident Capital Trust II
irrevocably deposits the redemption amount, additional distributions on the
capital securities will cease to accumulate from and after the redemption date.
In addition, all rights of the holders of the capital securities called for
redemption will cease, except for the right to receive distributions payable
prior to the redemption date and the redemption amount.
If any redemption date is not a business day, the redemption amount will be
payable on the next business day, without any interest or other payment in
respect of any such delay. However, if the next business day is in the next
calendar year, the redemption amount will be payable on the preceding business
day.
If payment of the redemption amount for any capital securities called for
redemption is improperly withheld or refused and not paid either by Provident
Capital Trust II or by us pursuant to the guarantee, distributions on the
capital securities will continue to accumulate from the originally scheduled
redemption date to the actual date of payment. In this case, the actual payment
date will be the redemption date for purposes of calculating the redemption
amount.
In addition, we may and our affiliates may, at any time, purchase
outstanding capital securities by tender, in the open market or by private
agreement.
Optional Liquidation of Provident Capital Trust II and Distribution of Junior
Subordinated Debentures
We may dissolve Provident Capital Trust II at any time, and after satisfying
the creditors of Provident Capital Trust II, may cause the junior subordinated
debentures to be distributed to the holders of the capital securities. We may
not dissolve Provident Capital Trust II, however, unless we first receive:
. the approval of the Federal Reserve System to do so, if that approval is
then required under the Federal Reserve System's capital rules; and
. an opinion of independent counsel to the effect that the distribution of
the junior subordinated debentures will not be taxable to you.
See below under the caption "Certain Terms of the Junior Subordinated
Debentures--Distribution of Junior Subordinated Debentures" in this prospectus
supplement.
If we elect to dissolve Provident Capital Trust II, thus causing the junior
subordinated debentures to be distributed to the holders of the capital
securities, we will continue to have the right to redeem the junior
subordinated debentures in certain circumstances as described above.
Subordination of Common Securities
Payment of distributions or any redemption or liquidation amounts by
Provident Capital Trust II regarding the capital securities and the common
securities will be made proportionately based on the total liquidation amounts
of the securities. However, if we are in default under the junior subordinated
debentures, Provident Capital Trust II will make no payments on the common
securities until all unpaid amounts on the capital securities have been
provided for or paid in full.
Trust Enforcement Events
An event of default under the indenture constitutes an event of default
under the
S-16
<PAGE>
declaration of trust. We refer to such an event as a "Trust Enforcement Event".
For more information on events of default under the Indenture, see below under
the caption "Description of the Junior Subordinated Debentures--Events of
Default" in the accompanying prospectus. Upon the occurrence and continuance of
a Trust Enforcement Event, the property trustee, as the sole holder of the
junior subordinated debentures, will have the right under the indenture to
declare the principal amount of the junior subordinated debentures due and
payable.
If the property trustee fails to enforce its rights under the junior
subordinated debentures, any holder of capital securities may, to the extent
permitted by applicable law, institute a legal proceeding against us to enforce
the property trustee's rights under the junior subordinated debentures and the
indenture without first instituting legal proceedings against the property
trustee or any other person. In addition, if a Trust Enforcement Event is due
to our failure to pay interest or principal on the junior subordinated
debentures when due, then the registered holder of capital securities may
institute a direct action on or after the due date directly against us for
enforcement of payment to that holder of the principal of or interest on the
junior subordinated debentures having a principal equal to the total
liquidation amount of that holder's capital securities. In connection with such
a direct action, we will have the right under the indenture to set off any
payment made to that holder by us. The holders of capital securities will not
be able to exercise directly any other remedy available to the holders of the
junior subordinated debentures.
Pursuant to the declaration of trust, the holder of the common securities
will be deemed to have waived any Trust Enforcement Event regarding the common
securities until all Trust Enforcement Events have been cured, waived or
otherwise eliminated. Until all Trust Enforcement Events have been so cured,
waived or otherwise eliminated, the property trustee will act solely on behalf
of the holders of the capital securities and only the holders of the capital
securities will have the right to direct the enforcement actions of the
property trustee.
Voting Rights
Except as provided below under the caption "Description of the Guarantees--
Amendments" in the accompanying prospectus and as otherwise required by law,
the holders of the capital securities will have no voting rights.
Remedies
So long as any junior subordinated debentures are held by the property
trustee, the holders of a majority of all outstanding capital securities will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the property trustee, or to direct the
exercise of any power conferred upon the property trustee under the declaration
of trust, including the right to direct the property trustee, as holder of the
junior subordinated debentures, to:
. exercise the remedies available to it under the indenture as a holder of
the junior subordinated debentures, including the right to rescind or
annul a declaration that the principal of all the junior subordinated
indentures will be due and payable;
. consent to any amendment, modification or termination of the indenture or
the junior subordinated debentures; or
. waive any past default that is waivable under the indenture.
However, where a consent or action under the indenture would require the
consent or action of the holders of more than a majority of the total principal
amount of junior subordinated debentures affected by it, only the holders of
that greater percentage of the capital securities may direct the property
trustee to give the consent or to take such action. See below under the caption
"Description of the Junior Subordinated Debentures--Meetings, Modification and
Waiver" in the accompanying prospectus.
If an event of default under the indenture has occurred and is continuing,
the holders of 25% of
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the total liquidation amount of the capital securities may direct the property
trustee to declare the principal and interest on the junior subordinated
debentures due and payable.
Meetings
Any required approval of holders of capital securities may be given at a
meeting of holders of capital securities convened for such purpose or pursuant
to written consent. The regular trustees will cause a notice of any meeting at
which holders of capital securities are entitled to vote to be given to each
holder of record of capital securities in the manner described in the
declaration of trust.
No vote or consent of the holders of capital securities will be required for
Provident Capital Trust II to redeem and cancel its capital securities in
accordance with the declaration of trust.
Global Securities; Book-Entry Issue
We expect that the capital securities will be issued in the form of global
securities held by The Depository Trust Company as described under the captions
"Description of the Capital Securities--Global Securities" and "Book-Entry
Issuance" in the accompanying prospectus.
Information Concerning the Property Trustee
The property trustee, other than during the occurrence and continuance of a
Trust Enforcement Event, undertakes to perform only the duties that are
specifically described in the declaration of trust and, after a Trust
Enforcement Event which has not been cured or waived, must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his own affairs. Subject to this provision, the property trustee is
under no obligation to exercise any of the powers vested in it by the
declaration of trust at the request of any holder of capital securities unless
it is offered reasonable security and indemnity against the costs, expenses and
liabilities that might be incurred in connection with taking that action.
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CERTAIN TERMS OF THE JUNIOR SUBORDINATED DEBENTURES
We have summarized below certain terms of the junior subordinated
debentures. This summary supplements the general description of these
securities in the accompanying prospectus. To the extent that this summary is
inconsistent with the description in the accompanying prospectus, you should
rely on the summary below. This summary is not a complete description of all of
the terms and provisions of the junior subordinated debentures. For more
information, we refer you to the indenture and the form of the junior
subordinated debentures, which we filed as exhibits to the registration
statement of which the accompanying prospectus is a part.
The junior subordinated debentures will be issued pursuant to an indenture
to be entered into between us and The Chase Manhattan Bank, as indenture
trustee.
Interest Rate and Maturity
The junior subordinated debentures will bear interest at the annual rate of
%, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, beginning , 1999. Interest payments not paid
when due will themselves accrue additional interest at the annual rate of % on
the amount of unpaid interest, to the extent permitted by law, compounded
quarterly. The amount of interest payable for any period will be computed based
on a 360 day year comprised of twelve 30 day months. The amount of interest
payable for any period shorter than a full quarterly period will be computed on
the basis of a 30 day month and, for periods of less than a month, the actual
number of days elapsed per 30 day month. The interest payment provisions for
the junior subordinated debentures correspond to the distribution provisions of
the capital securities.
The junior subordinated debentures do not have a sinking fund. This means
that we are not required to make any principal payments prior to maturity.
The junior subordinated debentures will mature on , 2029. In certain
circumstances, however, we will have the right to shorten the maturity of the
junior subordinated debentures to not earlier than , . See below under
the caption "--Option to Shorten Maturity Date" in this section.
Ranking
The junior subordinated debentures will be unsecured and will rank junior
and be subordinate in right of payment to all our senior debt.
As a holding company, our assets primarily consist of the equity securities
of our subsidiaries. As a result, the ability of holders of the junior
subordinated debentures to benefit from any distribution of assets of any
subsidiary upon the liquidation or reorganization of such subsidiary is
subordinate to the prior claims of present and future creditors of that
subsidiary.
The capital securities, the junior subordinated debentures and the guarantee
do not limit our or our subsidiaries' ability to incur additional debt,
including debt that ranks senior in priority of payment to the junior
subordinated debentures and the guarantee. At March 31, 1999, approximately
$227.2 million of our senior debt was outstanding. In addition, the junior
subordinated debentures will be effectively subordinated to all our
subsidiaries' existing and future obligations. At March 31, 1999, approximately
$7.6 billion of debt of our subsidiaries was outstanding.
Redemption
We have the option to redeem some or all of the junior subordinated
debentures before their maturity. For more information, see above under the
caption "Certain Terms of the Capital Securities--Redemption" in this
prospectus supplement.
Option to Shorten Maturity Date
If a Tax Event, as described above under the caption "Certain Terms of the
Capital Securities
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- --Redemption--Redemption Upon a Special Event" in this prospectus supplement
occurs, we may shorten the stated maturity of the junior subordinated
debentures to the minimum extent required so that interest on the junior
subordinated debentures will be deductible by us for United States federal
income tax purposes. In no event, however, may the resulting maturity of the
junior subordinated debentures be less than years from the date of original
issuance.
We may only shorten the stated maturity if we have received:
. an opinion of nationally recognized independent counsel experienced in
such matters to the effect that:
- after the shortening of maturity, interest paid on the junior
subordinated debentures will be deductible by us for United States
federal income tax purposes;
- the holders of capital securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of the
shortening of maturity, and will be taxed under United States federal
income tax law in the same amount, in the manner and at the same times
as would have been the case if the shortening of maturity had not
occurred; and
- the shortening of maturity will not cause Provident Capital Trust II to
be classified as other than a grantor trust for United States federal
income tax purposes; and
. the prior approval of the Federal Reserve System, if then required to do
so under the Federal Reserve System's capital rules.
Distribution of Junior Subordinated Debentures
If the property trustee distributes the junior subordinated debentures to
the holders of the capital securities and the common securities upon the
liquidation of Provident Capital Trust II, we will cause the junior
subordinated debentures to be issued in denominations of $25 principal amount
and integral multiples thereof. We anticipate that the junior subordinated
debentures would be distributed in the form of one or more global securities
and that The Depository Trust Company, would act as depositary for the junior
subordinated debentures. The depositary arrangements for the junior
subordinated debentures would be substantially the same as those in effect for
the capital securities.
For a description of The Depository Trust Company and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters, see "Book-Entry Issuance" in
the accompanying prospectus.
Option to Defer Interest Payments
We can defer interest payments on the junior subordinated debentures for up
to twenty consecutive quarterly interest payment periods if the junior
subordinated debentures are not in default. A deferral of interest payments
cannot extend, however, beyond the maturity date of the junior subordinated
debentures. During the deferral period, interest will continue to accrue on the
junior subordinated debentures, compounded quarterly, and deferred interest
payments will accrue additional interest at %. No interest will be due and
payable on the junior subordinated debentures until the end of the deferral
period except upon a redemption of the junior subordinated debentures during a
deferral period.
We may pay at any time all or any portion of the interest accrued to that
point during a deferral period. At the end of the deferral period or on any
redemption date, we will be obligated to pay all accrued and unpaid interest.
Once we pay all accrued and unpaid interest on the junior subordinated
debentures, we again can defer interest payments on the junior subordinated
debentures as described above.
Certain Limitations During a Deferral Period
During any deferral period, we will not and our subsidiaries will not be
permitted to:
. pay a dividend or make any other payment or distribution on our capital
stock;
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. redeem, purchase or make a liquidation payment on any of our capital
stock;
. make an interest, principal or premium payment, or repay, repurchase or
redeem, any of our debt securities that rank equal with or junior to the
junior subordinated debentures; or
. make any guarantee payment regarding any guarantee by us of debt
securities of any of its subsidiaries, if the guarantee ranks equal with
or junior to the junior subordinated debentures.
However, at any time, including during any deferral period, we will be
permitted to:
. pay dividends or distributions in additional shares of its capital stock;
. make payments under the guarantee in respect of the capital securities
and common securities;
. declare or pay a dividend in connection with the implementation of a
shareholders' rights plan, issue stock under such a plan or repurchase
such rights; and
. purchase common stock for reissuance pursuant to an employee benefit,
dividend reinvestment or stock repurchase plan or for issuance in an
acquisition transaction that was entered into prior to the commencement
of that deferral period.
Notice
If the property trustee is the sole holder of the junior subordinated
debentures, then we will give Provident Capital Trust II, the regular trustees
and the property trustee notice if we decide to defer interest payments on the
junior subordinated debentures. We will give that notice one business day
before the earlier of:
. the next date distributions on the capital securities are payable; or
. the date Provident Capital Trust II is required to give notice to the New
York Stock Exchange (or any other applicable self-regulatory
organization) or to holders of the capital securities of the record date
or the date any distribution is payable, but in any event at least one
business day before the record date.
The regular trustees will give notice to the holders of capital securities
if we decide to defer interest payments on the junior subordinated debentures.
If the property trustee is not the sole holder of the junior subordinated
debentures, we will give the holders notice of any deferral period ten business
days prior to the earlier of:
. the next interest payment date; or
. the date we are required to give notice to the New York Stock Exchange
(or any other applicable self-regulatory organization) or to holders of
the junior subordinated debentures of the record date or payment date of
any related interest payment, but in any event at least two business days
prior to the record date.
Miscellaneous
The indenture requires us, as issuer of the junior subordinated securities,
to pay all fees and expenses related to:
. the issuance and exchange of the capital securities and the junior
subordinated debentures;
. the organization, maintenance and dissolution of Provident Capital Trust
II;
. the retention of the trustees; and
. the enforcement by the property trustee of the rights of the holders of
the capital securities.
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RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the capital securities
are irrevocably guaranteed by us, to the extent Provident Capital Trust II has
funds available for the payment of such distributions, as described under
"Description of the Guarantees" in the accompanying prospectus.
If we do not make payments under the junior subordinated debentures,
Provident Capital Trust II will not have sufficient funds to pay distributions
or other amounts due on the capital securities. The guarantee does not cover
payment of distributions when Provident Capital Trust II does not have
sufficient funds to pay such distributions. In that event, a holder of capital
securities may institute a legal proceeding directly against us to enforce
payment of the junior subordinated debentures to such holder in accordance
with their terms, including our right to defer interest payments.
Taken together, our obligations under the declaration of trust, the junior
subordinated debentures, the indenture and the guarantee provide a full and
unconditional guarantee of payments of distributions and other amounts due on
the capital securities.
Sufficiency of Payments
As long as payments of interest, principal and other payments are made when
due on the junior subordinated debentures, those payments will be sufficient
to cover distributions and other payments due on the capital securities
because of the following factors:
. the total principal amount of the junior subordinated debentures will be
equal to the sum of the total stated liquidation amount of the capital
securities and the common securities;
. the interest rate and payment dates on the junior subordinated debentures
will match the distribution rate and payment dates for the capital
securities;
. as borrower, we will pay, and Provident Capital Trust II will not be
obligated to pay, all costs, expenses and liabilities of Provident
Capital Trust II except Provident Capital Trust II's obligations under
the capital securities and common securities; and
. the declaration of trust further provides that Provident Capital Trust II
will engage only in activity that is consistent with the limited purposes
of Provident Capital Trust II.
We have the right to set-off any payment we are otherwise required to make
under the indenture with and to the extent we make a related payment under the
guarantee.
Enforcement Rights of Holders of Capital Securities
If a Trust Enforcement Event occurs, the holders of capital securities
would rely on the enforcement by the property trustee of its rights as
registered holder of the junior subordinated debentures against us. In
addition, the holders of a majority in liquidation amount of the capital
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the property trustee or
to direct the exercise of any trust or power conferred upon the property
trustee under the declaration of trust, including the right to direct the
property trustee to exercise the remedies available to it as the holder of the
junior subordinated debentures. The indenture provides that the indenture
trustee will give holders of junior subordinated debentures notice of all
events of default within 30 days after their occurrence.
If the property trustee fails to enforce its rights under the junior
subordinated debentures in respect of an event of default under the indenture
after a holder of capital securities has
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made a written request, such holder may, to the extent permitted by applicable
law, institute a legal proceeding against us to enforce the property trustee's
rights under the junior subordinated debentures. In addition, if we fail to pay
interest or principal on the junior subordinated debentures, a holder of
capital securities may institute a proceeding directly against us for
enforcement of payment to that holder of the principal of or interest on junior
subordinated debentures having a principal amount equal to the total
liquidation amount of that holder's capital securities (which we refer to as a
"direct action"). In connection with such a direct action, we will have the
right under the indenture to set off any payment made to such holder by us. The
holders of capital securities will not be able to exercise directly any other
remedy available to the holders of the junior subordinated debentures.
Limited Purpose of Trust
The capital securities evidence undivided beneficial ownership interests in
the assets of Provident Capital Trust II, and Provident Capital Trust II exists
for the sole purpose of issuing the common securities and capital securities
and investing the proceeds thereof in junior subordinated debentures. A
principal difference between the rights of a holder of capital securities and a
holder of junior subordinated debentures is that a holder of junior
subordinated debentures is entitled to receive from us the principal of and
interest accrued on junior subordinated debentures held, while a holder of
capital securities is entitled to receive distributions to the extent Provident
Capital Trust II has funds available for the payment of such distributions.
Rights Upon Termination
Upon any dissolution, winding-up or liquidation of Provident Capital Trust
II involving the liquidation of the junior subordinated debentures, the holders
of the capital securities will be entitled to receive, out of assets held by
Provident Capital Trust II, subject to the rights of any creditors of Provident
Capital Trust II, the liquidation distribution in cash. Upon our voluntary or
involuntary liquidation or bankruptcy, the property trustee, as holder of the
junior subordinated debentures, would be our subordinated creditor,
subordinated in right of payment to all senior debt as described in the
indenture, but entitled to receive payment in full of principal and interest
before any of our stockholders receive payments or distributions. Because we
are the guarantor under the guarantee and, under the indenture, we have agreed
to pay for all costs, expenses and liabilities of Provident Capital Trust II
(other than Provident Capital Trust II's obligations to the holders of the
capital securities), the positions of a holder of capital securities and a
holder of the junior subordinated debentures relative to other creditors and to
our stockholders in the event of our liquidation or bankruptcy would be
substantially the same.
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UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a description of the material United States federal income
tax consequences of the purchase, ownership and disposition of the capital
securities. Where noted, it constitutes the opinion of Simpson Thacher &
Bartlett, special United States federal income tax counsel to Provident
Financial Group, Inc. and Provident Capital Trust II.
Except where we state otherwise, this summary deals only with capital
securities held as capital assets by a holder who:
. is a United States person (as defined below), and
. purchases the capital securities upon original issuance at their original
issue price.
A "United States person" is a holder who is one of the following:
. a citizen or resident of the United States;
. a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision of the
United States;
. an estate the income of which is subject to United States federal income
taxation regardless of its source; or
. a trust:
- that is subject to the supervision of a court within the United States
and the control of one or more United States persons, or
- that has a valid election in effect under applicable Treasury
regulations to be treated as a United States person.
Your tax treatment may vary depending on your particular situation. This
summary does not address all the tax consequences that may be relevant to
holders that are subject to special tax treatment, such as:
. banks;
. real estate investment trusts;
. regulated investment companies;
. insurance companies;
. dealers in securities or currencies;
. tax-exempt investors;
. persons holding capital securities as part of a hedging, conversion,
integrated or constructive sale transaction;
. persons holding capital securities as part of a straddle; or
. foreign investors.
In addition, this summary does not include any description of the following,
either of which may be applicable to you:
. any alternative minimum tax consequences; or
. the tax laws of any state, local or foreign government.
This summary is based on the Internal Revenue Code of 1986, as amended
(which we refer to as the "Code"), the Treasury regulations promulgated under
the Code and administrative and judicial interpretations. These income tax
laws, regulations and interpretations, however, may change at any time. Any
change could be retroactive to the issuance date of the capital securities.
The authorities on which this summary is based are subject to various
interpretations and the opinions of Simpson Thacher & Bartlett are not binding
on the Internal Revenue Service (which we refer to as "IRS") or the courts.
Either the IRS or the courts could disagree with the explanations or
conclusions contained in this summary. Nevertheless, Simpson Thacher & Bartlett
has advised us that they believe that the opinions expressed in this summary,
if challenged, would be sustained by a court with jurisdiction in a properly
presented case.
You should consult your own tax advisor regarding the tax consequences to
you of the purchase, ownership and disposition of the capital securities,
including the tax consequences under state, local, foreign, and other tax laws.
For a discussion of the possible redemption of the capital securities upon the
occurrence of a tax
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event, see "Certain Terms of the Capital Securities--Special Event Redemption"
in this prospectus supplement.
Classification of Provident Capital Trust II
In connection with the issuance of the capital securities, Simpson Thacher &
Bartlett is of the opinion that under current law and assuming full compliance
with the terms of the declaration of trust, and based upon certain facts and
assumptions contained in such opinion, Provident Capital Trust II will be
classified as a grantor trust for United States federal income tax purposes and
not as an association taxable as a corporation. As a result, for United States
federal income tax purposes, you generally will be treated as owning an
undivided beneficial ownership interest in the junior subordinated debentures.
Thus, you will be required to include in your gross income your proportionate
share of the interest income or original issue discount that is paid or accrued
on the junior subordinated debentures. See below under the caption "--Interest
Income and Original Issue Discount" in this section.
Classification of the Junior Subordinated Debentures
Provident Financial Group, Inc. intends to take the position that the junior
subordinated debentures will be classified for all United States tax purposes
as indebtedness of Provident Financial Group, Inc. under current law and, by
acceptance of a capital security, you covenant to treat the junior subordinated
debentures as indebtedness for all United States tax purposes. The remainder of
this discussion assumes that the junior subordinated debentures will be
classified as indebtedness of Provident Financial Group, Inc.
Interest Income and Original Issue Discount
You will generally be taxed on the stated interest on the junior
subordinated debentures as ordinary income at the time it is paid or accrued in
accordance with your regular method of tax accounting. We anticipate that the
junior subordinated debentures will not be issued with an issue price that is
less than their stated redemption price at maturity and that the junior
subordinated debentures will therefore not be subject to the special original
issue discount (which we refer to as "OID") rules upon initial issuance.
If, however, we exercise our right to defer payments of interest on the
junior subordinated debentures, the junior subordinated debentures will become
OID instruments at such time. In such case, you will be subject to the special
OID rules described below. Once the junior subordinated debentures become OID
instruments, they will be taxed as OID instruments for as long as they remain
outstanding.
Under the OID economic accrual rules, the following occur:
. you would accrue an amount of interest income each year that approximates
the stated interest payments called for under the terms of the junior
subordinated debentures using the constant-yield-to-maturity method of
accrual described in section 1272 of the Code;
. any amount of OID included in your gross income (whether or not during a
deferral period) regarding the capital securities would increase your tax
basis in such capital securities; and
. the actual cash payments of interest you receive on the junior
subordinated debentures in respect of such accrued OID would reduce your
tax basis in such capital securities.
The Treasury regulations dealing with OID and the deferral of interest
payments have not yet been addressed in any rulings or other interpretations by
the IRS. It is possible that the IRS might assert that the junior subordinated
debentures were issued initially with OID. If the IRS were successful,
regardless of whether we exercise our option to defer payments of interest on
such junior subordinated debentures, you would be subject to the special OID
rules described above.
If you are a corporate holder of capital securities, you will not be
entitled to a dividends-received deduction regarding any income you recognize
on the capital securities.
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Distribution of Junior Subordinated Debentures or Cash Upon Liquidation of
Provident Capital Trust II
As described under the caption "Certain Terms of the Capital Securities--
Optional Liquidation of Provident Capital Trust II and Distribution of Junior
Subordinated Debentures" in this prospectus supplement, the junior subordinated
debentures held by Provident Capital Trust II may be distributed to you in
exchange for your capital securities if Provident Capital Trust II is
liquidated before the maturity of the junior subordinated debentures, as long
as it first receives:
. the approval of the Federal Reserve System to do so, if that approval is
then required under the Federal Reserve System's capital rules; and
. an opinion of an independent counsel to the effect that the distribution
of the junior subordinated debentures will not be taxable to you.
Upon such a distribution, you will receive your proportionate share of the
junior subordinated debentures previously held indirectly through Provident
Capital Trust II. Your holding period and total tax basis in the junior
subordinated debentures will equal the holding period and total tax basis that
you had in your capital securities before the distribution.
In certain circumstances described above under the captions "Certain Terms
of the Capital Securities--Special Event Redemption" and "--Redemption" in this
prospectus supplement, we may redeem the junior subordinated debentures and
distribute cash in liquidation of Provident Capital Trust II. This distribution
of cash would be taxable as described below under "--Sales of Capital
Securities or Redemption of Junior Subordinated Debentures" in this section.
If you receive junior subordinated debentures in exchange for your capital
securities, you would accrue interest in respect of the junior subordinated
debentures received from Provident Capital Trust II in the manner described
above under the caption "--Interest Income and Original Issue Discount" in this
prospectus supplement.
Sales of Capital Securities or Redemption of Junior Subordinated Debentures
If you sell your capital securities or receive cash upon redemption of the
junior subordinated debentures, you will recognize gain or loss equal to the
difference between:
. the amount realized on the sale or redemption; and
. your adjusted tax basis in your capital securities or junior subordinated
debentures.
Your gain or loss will be a capital gain or loss, provided that you held the
capital securities as a capital asset, except to the extent any amount realized
is treated as payment of accrued but unpaid interest not previously included in
income. The gain or loss will generally be a long-term capital gain or loss if
you have held your capital securities for more than one year. Long-term capital
gains of individuals are taxed at a maximum rate of 20%. The deductibility of
capital losses is subject to limitations.
Non-United States Holders
The following discussion only applies to you if you are not a United States
person. As discussed above, the capital securities will be treated by the
parties as evidence of indirect beneficial ownership interests in the junior
subordinated debentures. See above under the caption "--Classification of
Provident Capital Trust II" in this section.
U.S. Federal Withholding Tax
The 30% U.S. federal withholding tax will not apply to any payment of
principal or interest (including OID) on the capital security (or the Junior
Subordinated Debentures) provided that:
. you do not actually (or constructively) own 10% or more of the total
combined voting power of all classes of our voting stock within the
meaning of the Code and the Treasury Regulations;
. you are not a controlled foreign corporation that is related to us
through stock ownership;
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. you are not a bank whose receipt of interest on the capital securities
(or the junior subordinated debentures) is described in section
881(c)(3)(A) of the Code; and
. (a) you provide your name and address on an IRS Form W-8, and certify,
under penalty of perjury, that you are not a United States person or (b)
a financial institution holding the capital security (or the junior
subordinated debenture) on your behalf certifies, under penalty of
perjury, that it has received an IRS Form W-8 from you and provides us
with a copy.
If you cannot satisfy the requirements described above, payments of premium,
if any, and interest (including OID) made to you will be subject to the 30%
U.S. federal withholding tax, unless you provide us with a properly executed
(1) IRS Form 1001 claiming an exemption from withholding under the benefit of a
tax treaty or (2) IRS Form 4224 stating that interest paid on the capital
security (or the junior subordinated debenture) is not subject to withholding
tax because it is effectively connected with your conduct of a trade or
business in the United States.
The 30% U.S. federal withholding tax will not apply to any gain or income
that you realize on the sale, exchange, retirement or other disposition of the
capital security or junior subordinated debenture.
U.S. Federal Estate Tax
Your estate will not be subject to U.S. federal estate tax on the capital
securities (or the junior subordinated debentures) beneficially owned by you at
the time of your death, provided that (1) you do not own 10% or more of the
total combined voting power of all classes of our voting stock (within the
meaning of the Code and the Treasury Regulations) and (2) interest on that
capital security (or the junior subordinated debentures) would not have been,
if received at the time of your death, effectively connected with the conduct
by you of a trade or business in the United States.
U.S. Federal Income Tax
If you are engaged in a trade or business in the United States and interest
on the capital securities (or the junior subordinated debentures) is
effectively connected with the conduct of that trade or business (although
exempt from the 30% withholding tax), you will be subject to U.S. federal
income tax on that interest on a net income basis in the same manner as if you
were a United States person as defined under the Code. In addition, if you are
a foreign corporation, you may be subject to a branch profits tax equal to 30%
(or lower applicable treaty rate) of your earnings and profits for the taxable
year, subject to adjustments, that are effectively connected with the conduct
by you of a trade or business in the United States. For this purpose, interest
on capital securities (or the junior subordinated debentures) will be included
in earnings and profits.
Any gain or income realized on the disposition of a capital security (or a
junior subordinated debenture) generally will not be subject to U.S. federal
income tax unless (1) that gain or income is effectively connected with the
conduct of a trade or business by you in the United States, or (2) you are an
individual who is present in the United States for 183 days or more in the
taxable year of that disposition, and certain other conditions are met.
Information Reporting and Backup Withholding
If you are a United States person, in general, information reporting will
apply to certain payments of principal, interest (including OID) and premium,
if any, paid on the capital securities (or junior subordinated debentures) and
to the proceeds of sale of a capital security (or a junior subordinated
debenture) made to you unless you are an exempt recipient such as a
corporation. A 31 percent backup withholding tax will apply to such payments if
you fail to provide a taxpayer identification number or certification of
foreign or other exempt status or fail to report in full interest income.
If you are not a United States person, in general, you will not be required
to provide information reporting and backup withholding regarding payments that
we make to you provided
S-27
<PAGE>
that we do not have actual knowledge that you are a United States person and we
have received from you the statement described above under "U.S. Federal
Withholding Tax." In addition, you will not be required to pay backup
withholding and provide information reporting regarding the proceeds of the
sale of a capital security (or a junior subordinated debenture) within the
United States or conducted through certain U.S.-related financial
intermediaries, if the payor receives the statement described above and does
not have actual knowledge that you are a United States person, as defined under
the Code, or you otherwise establish an exemption.
Treasury Regulations were recently issued that generally modify the
information reporting and backup withholding rules applicable to certain
payments made after December 31, 2000. In general, the new Treasury Regulations
would not significantly alter the present rules discussed above, except in
certain special situations.
Any amounts withheld under the backup withholding rules will be allowed as a
refund or a credit against your U.S. federal income tax liability provided the
required information is furnished to the IRS.
ERISA CONSIDERATIONS
Each fiduciary of an employee benefit plan subject to Title I of ERISA, a
plan described in Section 4975 of the Code, including an individual retirement
arrangement or a Keogh plan, and any entity whose underlying assets include
"plan assets" by reason of any such employee benefit plan's or plan's
investment in such entity (each of which we refer to as a "Plan") should
consider the fiduciary responsibility and prohibited transaction provisions of
ERISA and Section 4975 of the Code in the context of the Plan's particular
circumstances before authorizing an investment in the capital securities.
Accordingly, such a fiduciary should consider, among other factors, that each
Plan investing in the capital securities will be deemed to have represented
that the Plan's purchase of the capital securities is covered by one or more
specified prohibited transaction class exemptions. Plan fiduciaries should also
consider whether the Plan's investment in the capital securities would satisfy
the prudence and diversification requirements of ERISA and would be consistent
with the documents and instruments governing their Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans from
engaging in certain transactions involving "plan assets" with persons who are
"parties in interest" under ERISA or "disqualified persons" under the Code
("Parties in Interest") regarding such a Plan. A violation of these "prohibited
transaction" rules may result in an excise tax, penalty or other liabilities
under ERISA and/or Section 4975 of the Code for such persons or, in the case of
an individual retirement account, the occurrence of a prohibited transaction
involving the individual who established the individual retirement account, or
his or her beneficiaries, would cause the individual retirement account to lose
its tax-exempt status, unless exemptive relief is available under an applicable
statutory or administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA), certain church plans
(as defined in Section 3(33) of ERISA or Section 4975(g)(2) of the Code) and
foreign plans (as described in Section 4(b)(4) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code.
Under a regulation (which we refer to as the "Plan Assets Regulation")
issued by the United States Department of Labor (the "DOL"), the assets of
Provident Capital Trust II would be deemed to be "plan assets" of a Plan for
purposes of ERISA and Section 4975 of the Code if assets of a Plan were used to
acquire an equity interest in Provident Capital Trust II and no exception were
applicable under the Plan Assets Regulation. An "equity interest" is defined
under the Plan Assets Regulation as any interest in an entity other than an
instrument which is treated as debt under applicable local law and which has no
substantial equity features. Under one such exception contained in the Plan
Assets Regulation, the assets of Provident Capital Trust II would not be deemed
S-28
<PAGE>
to be "plan assets" of investing Plans if, immediately after the most recent
acquisition of any equity interest in Provident Capital Trust II, less than 25%
of the value of each class of equity interests in Provident Capital Trust II
were held by Plans, other employee benefit plans not subject to ERISA or
Section 4975 of the Code (such as governmental, church or foreign plans), and
entities holding assets deemed to be "plan assets" of any Plan (which we refer
to collectively, as "Benefit Plan Investors"). No assurance can be given that
the value of the capital securities held by Benefit Plan Investors will be less
than 25% of the total value of such capital securities at the completion of the
initial offering of the capital securities or thereafter, and no monitoring or
other measures will be taken regarding the satisfaction of the conditions to
this exception. All of the common securities will be purchased and held by
Provident.
It is possible that the capital securities may qualify as "publicly-offered
securities" under the Plan Assets Regulation. "Publicly-offered securities"
within the meaning of the Plan Assets Regulation are:
. widely held (i.e., owned by more than 100 investors independent of
Provident Financial Group, Inc. and of each other);
. freely transferable; and
. sold as part of an offering pursuant to an effective registration
statement under the Securities Act of 1933 and then timely registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934.
If the capital securities are "publicly offered securities", the underlying
assets of Provident Capital Trust II would not be deemed to be "plan assets" of
investing Plans. The underwriters expect:
. that the capital securities will be held by at least 100 independent
investors at the conclusion of the offering of the capital securities;
. that there will be no restrictions imposed on the transfer of the capital
securities; and
. that the capital securities will be sold as part of an offering pursuant
to an effective registration statement under the Securities Act of 1933
and then will be timely registered under the Securities Exchange Act of
1934.
There can be no assurance that this or any of the other exceptions set forth
in the Plan Assets Regulation will apply to the capital securities, and, as a
result, under the terms of the Plan Assets Regulation, an investing Plan's
assets could be considered to include an undivided interest in the assets held
by Provident Capital Trust II (including the junior subordinated debentures),
and transactions by Provident Capital Trust II could be subject to the
fiduciary responsibility provision of Title I of ERISA.
Regardless of whether the assets of Provident Capital Trust II are deemed to
be "plan assets" of Plans investing in Provident Capital Trust II, as discussed
above, the acquisition and holding of the capital securities with "plan assets"
of a Plan could itself result in a prohibited transaction. The DOL has issued
five prohibited transaction class exemptions ("PTCEs") that may provide
exemptive relief for direct or indirect prohibited transactions resulting from
the purchase and/or holding of the capital securities by a Plan. These class
exemptions are:
. PTCE 96-23 (for certain transactions determined by "in-house asset
managers");
. PTCE 95-60 (for certain transactions involving insurance company general
accounts);
. PTCE 91-38 (for certain transactions involving bank collective investment
funds);
. PTCE 90-1 (for certain transactions involving insurance company pooled
separate accounts); and
. PTCE 84-14 (for certain transactions determined by independent "qualified
professional asset managers").
S-29
<PAGE>
Such class exemptions may not, however, apply to all of the transactions
that could be deemed prohibited transactions in connection with a Plan's
investment in the capital securities.
Any purchaser of the capital securities that is an insurance company using
assets of its general account should note that, based on the reasoning of the
United States Supreme Court set forth in John Hancock Mutual Life Insurance
Company v. Harris Trust & Savings Bank, 114 S. Ct. 517 (1993), an insurance
company's general account may be deemed to include assets of Plans investing in
such general account (e.g., through the purchase of an annuity contract).
On December 22, 1997, the DOL issued a proposed regulation (64 F.R. 66908)
under Section 401(c) of ERISA intended to provide guidance on which assets held
by an insurance company in its general account constitute "plan assets" in
cases where such insurer has issued, on or before December 31, 1998, policies
or contracts to or for the benefit of a Plan that are supported by assets of
such insurer's general account and when the underlying general account assets
will not be deemed to be assets of such Plan if the insurer satisfies the
requirements of such regulation (if adopted as proposed).
Section 401(c) of ERISA also provides for certain other temporary and
transitional rules concerning the application of the fiduciary responsibility
and prohibited transaction provisions of ERISA and Section 4975 of the Code to
assets of an insurer's general account that support insurance policies or
contracts issued by the insurer. The plan asset status of insurance company
separate accounts is unaffected by Section 401(c) of ERISA and the proposed
regulations thereunder. Any insurance company considering the use of its
general account assets to purchase capital securities should consult with its
counsel concerning these and other matters affecting its purchase decision.
Because of ERISA's prohibitions and those of Section 4975 of the Code,
discussed above, the capital securities, or any interest therein, should not be
purchased or held by any Plan or any person investing "plan assets" of any
Plan, unless such purchase and holding is covered by the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 (or some other
applicable class or individual exemption). Accordingly, each purchaser or
holder of the capital securities or any interest therein will be deemed to have
represented by its purchase and holding thereof that either:
. it is not a Plan and no part of the assets to be used by it to purchase
and/or hold such capital securities or any interest therein constitutes
"plan assets" of any Plan; or
. it is itself a Plan, or is purchasing or holding the capital securities
or an interest therein on behalf of or with "plan assets" of one or more
Plans, and each such purchase and holding of such securities satisfies
the requirements of, and is entitled to full exemptive relief under, PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 (or some other applicable class or
individual exemption).
Although, as noted above, governmental plans are not subject to ERISA,
including the prohibited transaction provisions thereof, or of Section 4975 of
the Code, state laws or regulations governing the investment and management of
the assets of such plans may contain fiduciary and prohibited transaction
provisions similar to those under ERISA and Section 4975 of the Code discussed
above. Similarly, fiduciaries of other plans not subject to ERISA may be
subject to other legal restrictions under applicable laws that are similar to
ERISA. Accordingly, fiduciaries of governmental plans or other plans not
subject to ERISA, in consultation with their advisors, should consider the
impact of their respective state laws on their investment in capital
securities, and the considerations discussed above, to the extent applicable.
Due to the complexity of the fiduciary responsibility and prohibited
transaction rules described above and the penalties that may be imposed upon
persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing the capital
securities on behalf of or with "plan assets" of any Plan consult with their
counsel, prior to any such purchase, regarding the potential applicability of
ERISA and Section 4975 of the Code to such investment and whether any exemption
would be applicable and determine on their own whether all conditions of such
exemption or exemptions have been satisfied such that the acquisition and
holding of capital securities by the purchaser Plan are entitled to full
exemption relief thereunder.
S-30
<PAGE>
UNDERWRITING
Based on the terms and conditions of an underwriting agreement, Provident
Capital Trust II has agreed to sell to each of the underwriters named below and
each of the underwriters has severally agreed to purchase from Provident
Capital Trust II the liquidation amount of capital securities set forth
opposite its name below:
<TABLE>
<CAPTION>
Liquidation
Amount of
Capital
Underwriters Securities
- ------------ -----------
<S> <C>
Lehman Brothers Inc................................................. $
...........................................................
----
Total............................................................. $
====
</TABLE>
The underwriting agreement provides that the obligations of the underwriters
to purchase the capital securities are subject to the satisfaction of certain
conditions, including the approval of certain legal matters by their counsel.
The underwriters are obligated to purchase all of the capital securities if
they purchase any of them.
We and Provident Capital Trust II have agreed to indemnify the underwriters
against certain liabilities, including liabilities under the Securities Act of
1933, or to contribute regarding payments which the underwriters may be
required to make.
Commissions and Discounts
The underwriters will offer the capital securities directly to the public at
$ per capital security plus accrued and unpaid distributions, if any. The
underwriters may also offer the capital securities to certain selected
securities dealers at the above mentioned offering price less a concession of
$ per capital security. The underwriters may allow, and such dealers may
reallow, a discount not in excess of $ per capital security to certain other
dealers. After the initial public offering, the public offering price,
concession and discount may be changed.
Since the proceeds from the sale of the capital securities will be used to
purchase the junior subordinated debentures, we have agreed to pay to the
underwriters an underwriting commission of $ per capital security.
We will pay certain other fees and expenses, which we expect to be
approximately $ , in connection with the offer and sale of the capital
securities.
New York Stock Exchange Listing
Before this offering, there has been no established public trading market
for the capital securities. We expect that the capital securities will be
approved for listing on the New York Stock Exchange within 30 days of their
issuance. If listed, trading of the capital securities is expected to begin
within 30 days of the issuance of the capital securities. In order to meet all
of the requirements for listing the capital securities on the New York Stock
Exchange, the underwriters have agreed to sell the capital securities to a
minimum of 400 beneficial holders. The underwriters have advised us that they
intend to make a market in the capital securities prior to the commencement of
trading on the New York Stock Exchange. The underwriters are not, however,
obligated to do so and may discontinue market making at any time without
notice. We cannot assure you that an active trading market will be available
for the capital securities, whether or not they are listed on the New York
Stock Exchange, or that you will be able to sell capital securities at the
price you originally paid for them.
No Sales of Similar Securities
We and Provident Capital Trust II have agreed that for 30 business days
after the date of this prospectus supplement not directly or indirectly to
offer, sell, offer to sell, or grant any option for the sale of any capital
securities or junior subordinated debentures or any securities convertible or
exchangeable into, or exercisable for, capital securities or junior
subordinated debentures, or any debt securities substantially similar to junior
subordinated debentures or any equity securities substantially similar to the
capital securities, except for the capital securities and
S-31
<PAGE>
junior subordinated debentures described in this prospectus supplement, without
the prior written consent of Lehman Brothers Inc.
Confirmation to Discretionary Accounts Not Permitted
The underwriters may not confirm sales to any accounts over which they
exercise discretionary authority without the prior approval of the customer.
Price Stabilization and Short Positions
In connection with the sale of the capital securities, SEC rules permit the
underwriters to engage in transactions that stabilize the price of the capital
securities. These transactions may include purchases for the purpose of fixing
or maintaining the price of the capital securities. The underwriters may create
a short position in the capital securities in connection with the offering.
That means they may sell a larger number of the capital securities than is
shown on the cover page of this prospectus supplement. If they create a short
position, the underwriters may purchase capital securities in the open market
to reduce the short position. If the underwriters purchase the capital
securities to stabilize the price or to reduce their short position, the price
of the capital securities could be higher than it might be if they had not made
such purchases. The underwriters make no representation or prediction about any
effect that these purchases may have on the price of the capital securities.
The underwriters may suspend any of these activities at any time.
The underwriters may also impose a penalty bid on certain dealers and
selling group members. This means that if the representatives of the
underwriters purchase capital securities in the open market to reduce the
underwriters' short position or to stabilize the price of the capital
securities, they may reclaim the amount of the selling concession from the
underwriters or selling group members who sold those securities as part of this
offering.
Affiliations
The underwriters have in the past and expect that they may in the future
engage in transactions with and perform services for us and our subsidiaries in
the ordinary course of their businesses, for which they received, and in the
future expect that they will receive, customary fees.
S-32
<PAGE>
$
PROVIDENT CAPITAL TRUST II
SKIS SM
% Subordinated Capital Income Securities
fully and unconditionally guaranteed by
PROVIDENT FINANCIAL GROUP, INC.
--------------------------------------------
PRELIMINARY PROSPECTUS SUPPLEMENT
, 1999
--------------------------------------------
Lehman Brothers
"SKIS" is a service mark of Lehman Brothers Inc.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
$200,000,000
PROVIDENT CAPITAL TRUST II
PROVIDENT CAPITAL TRUST III
Preferred Securities
fully and unconditionally guaranteed by
PROVIDENT FINANCIAL GROUP, INC.
-----------
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2000
-----------
These securities may be offered from time to time, in amounts, on terms and at
prices that will be determined at the time they are offered for sale. These
terms and prices will be described in more detail in one or more supplements to
this prospectus, which will be distributed at the time the securities are
offered.
-----------
You should read this prospectus and any supplement carefully before you invest.
-----------
This prospectus may not be used to sell any of the securities unless it is
accompanied by a prospectus supplement.
-----------
The securities may be sold to or through underwriters, through dealers or
agents, directly to purchasers or through a combination of these methods. If an
offering of securities involves any underwriters, dealers or agents, then the
applicable prospectus supplement will name the underwriters, dealers or agents
and will provide information regarding any fee, commission or discount
arrangements made with those underwriters, dealers or agents.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
-----------
This prospectus is dated , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About this Prospectus.................................................... 1
Where You Can Find More Information About Provident Financial Group,
Inc. ................................................................... 2
Summary.................................................................. 3
Provident Financial Group, Inc. ......................................... 4
The Trusts............................................................... 4
Use of Proceeds.......................................................... 5
Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends............................. 6
</TABLE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Description of The Preferred Securities.................................... 7
Description of The Guarantees.............................................. 14
Description of The Junior Subordinated Debentures.......................... 17
Book-Entry Issuance........................................................ 26
ERISA Matters.............................................................. 29
Plan of Distribution....................................................... 29
Legal Opinions............................................................. 30
Experts.................................................................... 30
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Provident Financial
Group, Inc., Provident Capital Trust II and Provident Capital Trust III have
filed with the Securities and Exchange Commission (which we refer to as the
"SEC") using a "shelf" registration process. Under this shelf process, each of
Provident Capital Trust II and Provident Capital Trust III (which we refer to
as the "Trusts") may sell its own preferred securities, guaranteed by the
related guarantees of Provident Financial Group, Inc., as described in this
prospectus, in one or more offerings up to a total dollar amount of
$200,000,000 and invest the proceeds in junior subordinated debentures issued
by Provident Financial Group, Inc. This prospectus provides you with a general
description of the capital securities of each Trust and the related guarantees
and junior subordinated debentures. Each time that one of the Trusts sells its
capital securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. References to this prospectus or the prospectus supplement also
mean the information contained in such other documents filed with the SEC. If
this prospectus is inconsistent with the prospectus supplement, you should rely
on the prospectus supplement. You should read both this prospectus and any
prospectus supplement together with any additional information that we refer
you to as discussed under "Where You Can Find More Information About Provident
Financial Group, Inc."
1
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION ABOUT PROVIDENT FINANCIAL GROUP, INC.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document which we file at
the SEC's public reference rooms in Washington, D.C., New York, New York,
Chicago, Illinois and Denver, Colorado. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" in this prospectus the
information that we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically 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 sell all of the
Preferred Securities:
. Annual Report on Form 10-K for the year ended December 31, 1998, as
amended;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and
. Current Report on Form 8-K filed on January 29, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning Provident Financial Group, Inc., Attention: Investor Relations, One
East Fourth Street, Cincinnati, Ohio 45202, telephone (513) 345-7102 or 800-
851-9521.
This prospectus does not contain or incorporate by reference any separate
financial statements of the Trusts. We do not believe that these financial
statements are material to prospective holders of the preferred securities
because:
. all of the voting securities of the Trusts will be owned, directly or
indirectly, by us, a reporting company under the Securities Exchange Act
of 1934;
. the Trusts have no independent operations but exist for the sole purpose
of issuing securities representing undivided beneficial ownership
interests in their respective assets and investing these proceeds in the
junior subordinated debentures issued by us; and
. the obligations of the Trusts under the preferred securities are
guaranteed by us to the extent described in this prospectus.
The Trusts are not currently subject to the informational reporting
requirements of the Securities Exchange Act of 1934. The Trusts will become
subject to such requirements upon the effectiveness of the registration
statement, although we intend and the Trusts intend to seek and expect to
receive exemptions from those reporting requirements.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
2
<PAGE>
SUMMARY
Each of the Trusts is a business trust recently organized under Delaware law
by us. They may each offer, at prices and on terms to be determined at the time
of sale, one series of their preferred securities. Each Trust will issue only
one series of preferred securities. The preferred securities will represent
undivided beneficial ownership interests in the assets of the applicable Trust.
Unless the applicable prospectus supplement states otherwise, holders of
preferred securities will receive cash distributions on a periodic basis and
payments on liquidation, redemption or otherwise of the preferred securities as
described in the applicable prospectus supplement.
The preferred securities will be guaranteed on a subordinated basis by us to
the extent described in this prospectus and the applicable prospectus
supplement. Our obligations under the guarantees will be subordinated to the
same extent as our obligations under the junior subordinated debentures.
When a Trust issues a series of its preferred securities, it will also issue
and sell to us a series of common securities. The Trust will use the proceeds
from the issuances of the preferred securities and common securities to
purchase a corresponding series of junior subordinated debentures from us. The
junior subordinated debentures purchased by the applicable Trust may be
distributed subsequently on a proportionate basis to holders of preferred
securities and common securities if that Trust were to be dissolved. The Trust
may be dissolved subject to certain conditions that will be described in an
accompanying prospectus supplement.
Each guarantee, when taken together with our obligations under the
corresponding series of junior subordinated debentures, the indenture under
which the junior subordinated debentures will be issued and the relevant
declaration of trust, including our obligations to pay the costs, expenses,
debts and liabilities of each Trust (other than regarding the preferred
securities and the common securities of the Trust), will constitute a full and
unconditional guarantee on a subordinated basis by us of all payments due on
the preferred securities.
3
<PAGE>
PROVIDENT FINANCIAL GROUP, INC.
Current Status
We are a Cincinnati-based commercial banking and financial services company
organized under the laws of the State of Ohio. We have full service banking
operations in Ohio, northern Kentucky and southwestern Florida. At March 31,
1999, we had total assets of $8.6 billion, loans and leases of $5.9 billion,
deposits of $5.6 billion and shareholders' equity of $712 million. We also
service an additional $3.6 billion of loans and leases.
Our Plan for Expansion
Internal Growth and Acquisitions
We have expanded our franchise in recent years through internal growth and
acquisitions. Business lines that have been expanded to operate at a national
level include Provident Capital Corp. (a middle-market structured finance
products division), Provident Commercial Group and Information Leasing
Corporation (commercial leasing divisions) and Provident Consumer Financial
Services (a mortgage loan division).
Banking Services Expansion
We currently conduct our banking operations through The Provident Bank (in
Ohio) and Provident Bank of Florida.
We expanded our banking services by acquisitions of Florida Gulfcoast
Bancorp, Inc. located in Sarasota, Florida and South Hillsborough Community
Bank located in Hillsborough County, Florida. Further, the Provident Bank of
Kentucky merged into The Provident Bank on March 23, 1998.
Contact Information
Our executive offices are located at One East Fourth Street, Cincinnati,
Ohio 45202 and its Investors Relations telephone number is (513) 345-7102 or
800-851-9521.
THE TRUSTS
Purpose and Ownership of the Trusts
Each of the Trusts is a business trust recently organized under Delaware law
by us and the trustees. The Trusts are being established solely for the
following purposes:
. to issue and sell the preferred securities, which represent undivided
beneficial ownership interests in the assets of each Trust;
. to issue and sell the common securities to us in a total liquidation
amount equal to 3% of the total capital of each Trust;
. to use the proceeds from the sale of the common securities and the
preferred securities to acquire the junior subordinated debentures from
us; and
. to engage in other activities that are directly related to the activities
described above, such as registering the transfer of the preferred
securities.
Because each Trust is being established only for the purposes listed above,
the applicable series of junior subordinated debentures will be the sole assets
of the applicable Trust, and payments under the junior subordinated debentures
will be the sole source of income to that Trust.
As issuer of the junior subordinated debentures, we will pay:
. all fees, expenses and taxes related to each Trust and the offering of
each Trust's preferred securities; and
. all ongoing costs, expenses and liabilities of the Trusts, except
obligations to make distributions and other payments on the common
securities and the preferred securities.
For so long as the preferred securities remain outstanding, we will promise
to:
. own directly or indirectly all of the common securities;
. cause each Trust to remain a business trust and not to voluntarily
dissolve, wind-up, liquidate or be terminated, except as permitted by the
relevant declaration of trust;
4
<PAGE>
. use its commercially reasonable efforts to ensure that each Trust will
not be an "investment company" for purposes of the Investment Company Act
of 1940; and
. take no action that would be reasonably likely to cause each Trust to be
classified as an association or a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.
The Trustees
Each of the Trust's business and affairs will be conducted by its five
trustees. In each case, the three regular trustees of each Trust will be
individuals who are our employees. The property trustee of each Trust will hold
title to the junior subordinated debentures for the benefit of the holders of
the preferred securities of each Trust and will have the power to execute all
rights and powers of a registered holder of junior subordinated debentures
under the indenture. The Delaware trustee will maintain its principal place of
business in Delaware and meet the requirements of Delaware law for Delaware
business trusts.
We have the sole right to appoint, remove and replace any of the trustees of
each Trust unless an event of default occurs under the indenture. In that
event, the holders of a majority in liquidation amount of the applicable
preferred securities will have the right to remove and appoint the property
trustee and the Delaware trustee.
Additional Information
For additional information concerning the particular Trust issuing a series
of preferred securities, see "The Trust" in the applicable prospectus
supplement. We anticipate that the Trusts will not be required to file any
reports with the SEC after the issuance of the preferred securities. As
discussed below under the caption "Accounting Treatment", we will provide
certain information concerning each of the Trusts and the preferred securities
in the financial statements included in its own periodic reports to the SEC.
Offices of the Trusts
The executive office of each Trust is c/o Provident Financial Group, Inc.,
One East Fourth Street, Cincinnati, Ohio 45202, Attention: General Counsel, and
its telephone number is (513) 579-2861.
USE OF PROCEEDS
Each Trust will invest all of the net proceeds from the sale of any
preferred securities in junior subordinated debentures.
Except as otherwise may be described in a prospectus supplement accompanying
this prospectus, we expect to use the proceeds from the sale of the junior
subordinated debentures for general corporate purposes, which may include the
repayment of debt, investments in or extensions of credit to our subsidiaries
and the financing of possible acquisitions. We currently have no agreements,
arrangements or understandings regarding possible material acquisitions.
5
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our consolidated ratios of earnings to fixed charges and consolidated ratios
of earnings to combined fixed charges and preferred stock dividend requirements
for each of the periods indicated are set forth below:
<TABLE>
<CAPTION>
Three
Months
Ended March
31, Year Ended December 31,
----------- -----------------------------
1999 1998 1994 1995 1996 1997 1998
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits.... 2.71x 2.75x 2.37x 2.82x 2.33x 2.55x 3.13x
Including Interest on Deposits.... 1.61x 1.57x 1.50x 1.53x 1.42x 1.41x 1.53x
Earnings to Combined Fixed Charges
and Preferred Stock Dividend
Requirements:
Excluding Interest on Deposits.... 2.68x 2.72x 2.35x 2.78x 2.31x 2.42x 2.82x
Including Interest on Deposits.... 1.60x 1.57x 1.50x 1.52x 1.42x 1.39x 1.49x
</TABLE>
For purposes of computing the ratios of both earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income plus applicable income taxes and fixed charges.
Fixed charges, excluding interest on deposits, represent interest expense
(except interest on deposits), capitalized interest, and the interest factor
included in rents. Fixed charges, including interest on deposits, represent all
interest expense, capitalized interest, and the interest factor included in
rents. Combined fixed charges and preferred stock dividend requirements,
excluding interest on deposits, represent interest expense (except interest
paid on deposits), capitalized interest, an amount equal to the pre-tax
earnings required to meet applicable preferred stock dividend requirements, and
the interest factor included in rents. Combined fixed charges and preferred
stock dividend requirements, including interest on deposits, represent all
interest expense, capitalized interest, an amount equal to the pre-tax earnings
required to meet applicable preferred stock dividend requirements, and the
interest factor included in rents.
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DESCRIPTION OF THE PREFERRED SECURITIES
The following description of the terms and provisions of preferred
securities summarizes certain general terms that will apply to each series of
preferred securities. This description is not complete, and we refer you to the
certificate of trust and the declaration of trust for each Trust and the form
of the amended and restated declaration of trust, copies of which we filed as
exhibits to the registration statement of which this prospectus is a part.
Declaration of Trusts
When a Trust issues a series of preferred securities, the declaration of
trust relating to that Trust will contain, and the prospectus supplement
relating to that series will summarize, the terms and other provisions relating
to that series of preferred securities. Each Trust will issue only one series
of preferred securities.
The declaration of trust of each Trust will be qualified as an indenture
under the Trust Indenture Act of 1939. Unless the applicable prospectus
supplement states otherwise, The Chase Manhattan Bank will act as indenture
trustee under each relevant declaration of trust.
Each series of preferred securities will represent undivided beneficial
ownership interests in the assets of the applicable Trust. The holders of the
preferred securities will be entitled to a preference in certain circumstances
regarding distributions from the applicable Trust and amounts payable on
redemption or liquidation over the corresponding series of common securities,
as well as other benefits as described in the relevant declaration of trust.
Specific Terms of Each Series
Each time that a Trust issues a series of preferred securities, the
prospectus supplement relating to that new series will summarize the particular
amount, price and other terms and provisions of these preferred securities.
These terms may include the following:
. the distinctive designation of the preferred securities;
. the number of preferred securities issued by the applicable Trust and the
liquidation value of each such preferred security;
. the annual distribution rate (or method of determining such rate) for
preferred securities issued by the applicable Trust and the date or dates
upon which such distributions will be payable;
. whether distributions on preferred securities issued by the applicable
Trust may be deferred and, if so, what the maximum number of
distributions that may be deferred and the terms and conditions of such
deferrals will be;
. whether distributions on preferred securities issued by the applicable
Trust will be cumulative, and, in the case of preferred securities having
such cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on preferred
securities issued by each Trust will be cumulative;
. the amount or amounts which will be paid out of the assets of the
applicable Trust to the holders of preferred securities of the Trust upon
voluntary or involuntary dissolution, winding up or termination of the
applicable Trust;
. the obligation, if any, of the applicable Trust to purchase or redeem
preferred securities issued by the applicable Trust and the price or
prices at which, the period or periods within which and the terms and
conditions upon which preferred securities issued by the applicable Trust
will be purchased or redeemed, in whole or in part, pursuant to such
obligation;
. the voting rights, if any, of preferred securities issued by the
applicable Trust in addition to those required by law, including the
number of votes per preferred security and any requirement for the
approval by
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<PAGE>
the holders of preferred securities as a condition to specified action or
amendments to the relevant declaration of trust; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities issued by the applicable Trust,
consistent with the declaration of the trust and with applicable law.
All preferred securities that a Trust offers will be guaranteed by us to the
extent set forth below under the caption "Description of the Guarantees" in
this prospectus. The applicable prospectus supplement will also describe the
United States federal income tax considerations applicable to each offering of
preferred securities.
Issuance of Common Securities
In connection with the issuance of preferred securities, each Trust will
issue a new series of common securities to us. Except as described below under
the caption "--Subordination" in this prospectus, the terms of the common
securities issued by the applicable Trust will be substantially identical to
the terms of the preferred securities. These terms will be defined in the
relevant declaration of trust and will be summarized in the applicable
prospectus supplement. These terms will specify the following:
. the annual distribution rate (or method of determining that rate) and the
date or dates upon which the distributions will be payable;
. the rights of the applicable Trust to redeem the common securities and
related provisions;
. the voting rights of holders of the common securities;
. any liquidation rights or similar restrictions;
. and other specific terms of the common securities (not inconsistent with
the relevant declaration of trust).
Subordination
The common securities will rank on a par with, and payments will be made on
them on a proportionate basis with, the preferred securities issued by the
applicable Trust, except that upon a "Trust Enforcement Event" (as defined
below), the rights of the holders of the common securities to payments of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities.
Holder of Common Securities
Except in certain limited circumstances, the holder of the common securities
of the applicable Trust will have sole power to appoint, remove or replace any
of the trustees of the applicable Trust. All of the common securities of the
applicable Trust will be directly or indirectly owned by us.
Trust Enforcement Events
An event of default under the indenture that has occurred and is continuing
constitutes a "Trust Enforcement Event" under the relevant declaration of
trust.
Remedies of Holders of Preferred Securities and the Property Trustee
If a Trust Enforcement Event occurs and is continuing, then the holders of
preferred securities of the applicable Trust would rely on the enforcement by
the property trustee of its rights as a holder of the junior subordinated
debentures against us. In addition, the holders of a majority in liquidation
amount of the preferred securities of the applicable Trust will have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the property trustee or to direct the exercise of any trust
or power conferred upon the property trustee under the relevant declaration of
trust, including the right to direct the property trustee to exercise the
remedies available to it as a holder of the junior subordinated debentures.
Upon the occurrence of a Trust Enforcement Event, the property trustee, as
the holder of the
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<PAGE>
junior subordinated debentures, will have the right under the indenture to
declare the principal of and premium, if any, and interest on the junior
subordinated debentures held by the applicable Trust to be immediately due and
payable.
If the property trustee fails to enforce its rights regarding the junior
subordinated debentures held by the applicable Trust, any holder of preferred
securities may, to the extent permitted by applicable law, institute a legal
proceeding directly against us to enforce the property trustee's rights under
these junior subordinated debentures without first instituting any legal
proceeding against the property trustee or any other person or entity. In
addition, if a Trust Enforcement Event has occurred and is continuing and such
event is attributable to our failure to make any required payments on the
junior subordinated debentures when due, then a holder of preferred securities
may, on or after the date that such payment was due, institute a proceeding
directly against us for enforcement of payment on the junior subordinated
debentures having a principal amount equal to the total liquidation amount of
the preferred securities held by that holder (we refer to such proceeding as a
"Direct Action"). In connection with a Direct Action, we will have the right
under the indenture to set off any payment made to that holder by us. The
holders of preferred securities will not be able to exercise directly any other
remedy available to the holders of junior subordinated debentures.
Remedies of Holders of Common Securities
The holder of the common securities will be deemed to have waived any Trust
Enforcement Event regarding the common securities until all Trust Enforcement
Events regarding the preferred securities have been cured, waived or otherwise
eliminated. Until such a Trust Enforcement Event has been cured, waived or
otherwise eliminated, the property trustee will be deemed to be acting solely
on behalf of the holders of the preferred securities and only the holders of
the preferred securities will have the right to direct the property trustee
regarding remedies under the relevant declaration of trust, and, therefore, the
indenture.
Limitation on Consolidations, Mergers and Sale of Assets
Each of the Trusts may not consolidate, merge with or into, or sell or lease
substantially all of its properties and assets to any corporation or other
entity, unless:
. a majority of the regular trustees consent to such a transaction;
. the successor assumes all of the obligations of the Trust regarding the
preferred securities, or substitutes other securities for the preferred
securities with the same terms and other provisions as the preferred
securities (which we refer to as "Successor Securities"), and regarding
the Trustees;
. if Successor Securities are issued, these securities are listed on the
same national securities exchange on which the preferred securities were
listed;
. the transaction does not cause the preferred securities or the Successor
Securities to be downgraded by a national ratings organization;
. such transaction does not adversely affect the rights of the holders of
the preferred securities in any material respect;
. following the transaction, the Trust would not have to register as an
"investment company" under the Investment Company Act of 1940;
. we, or a successor which will own all of the common securities of the
Trust or its successor, will guarantee the preferred securities, or the
Successor Securities, to the same extent as the preferred securities are
guaranteed by the guarantee;
. the Trust would continue to be classified as a grantor trust for United
States federal income tax purposes, unless each holder of preferred
securities consents to such a change; and
. the holders of the preferred securities would continue to be treated as
owning an undivided beneficial interest in the assets of the Trust,
unless each holder of the preferred securities consents to such a change.
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<PAGE>
Paying Agent
Unless the applicable prospectus supplement states otherwise, in the event
that any preferred securities are not in the form of global securities, as
described under "Book-Entry Issuance", each Trust will maintain in the Borough
of Manhattan, The City of New York, an office or agency where the preferred
securities may be presented for payment by a paying agent.
Each Trust may appoint a paying agent and may appoint one or more additional
paying agents in such other locations as it may determine and change any paying
agent without prior notice to the holders of preferred securities. Each Trust,
or any of its affiliates, may act as paying agent regarding any series of
preferred securities. Unless the applicable prospectus supplement states
otherwise, the property trustee will act as paying agent for each series of
preferred securities. In the event that the property trustee will no longer act
as the paying agent, the regular trustees may appoint a successor, which will
be a bank or trust company acceptable to us, to act as paying agent.
Transfer of Preferred Securities
For each issue of preferred securities, the property trustee will keep a
security register to provide for the transfer and registration of transfer of
preferred securities. The following provisions apply to the transfer of
preferred securities which are not issued in book-entry form:
. Holders of any issue of preferred securities may exchange their
securities for an equal principal amount of other preferred securities of
different authorized denominations of the same issue and with the same
terms.
. No service charge will be made for any registration of transfer or
exchange of securities, but the Trust 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 or exchange of
securities.
. If the preferred securities are to be redeemed in part, the Trust will
not be required:
-- to issue, register the transfer of or exchange any securities during
a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of any such securities
selected for redemption and ending at the close of business on the
day of such mailing; or
-- to register the transfer or exchange of any preferred security so
selected for redemption in whole or in part, except the unredeemed
portion of any security being redeemed in part.
Global Securities
The preferred securities of any issue may be issued in the form of one or
more global securities. Preferred securities of any issue will no longer be
eligible to be represented in the form of a global security and will be
registered in definitive form if one of the following events occurs:
. if at any time the depositary notifies the applicable Trust that it is
unwilling or unable under the Securities Exchange Act of 1934 and other
applicable law to continue as depositary or if at any time it will no
longer be eligible, in each case if a successor depositary is not
appointed within 90 days after the applicable Trust receives notice or
becomes aware of this ineligibility; or
. the applicable Trust, in its sole discretion, may determine that the
preferred securities issued in the form of one or more global securities
will no longer be represented by a global security.
For more information regarding the issuance of global securities and the
depositary arrangements for them, see below under the caption "Book-Entry
Issuance" in this prospectus.
10
<PAGE>
Registration of Global Securities
If the preferred securities are to be issued in the form of one or more
global securities, then a regular trustee on behalf of the applicable Trust
will execute and the property trustee will cause the global securities to be
registered in the name of the depositary for these global securities or its
nominee.
Registration of Preferred Securities in Definitive Form
Preferred securities not represented by a global security which are issued
in exchange for all or a part of a global security will be registered in such
names and in such authorized denominations as the depositary, pursuant to
instructions from its direct or indirect participants or otherwise, will
instruct the property trustee. Upon execution and authentication, the property
trustee will deliver the preferred securities not represented by a global
security to the persons in whose names such definitive preferred securities are
so registered. The preferred securities that are not initially represented by a
global security may be exchanged or transferred for part of a global security
pursuant to the instructions and procedures of the depositary.
Reliance on the Depositary by the Trusts and Property Trustee
In connection with each issue of preferred securities, the applicable Trust
and property trustee may for all purposes, including the making of payments due
on these preferred securities, deal with the depositary as the authorized
representative of the holders of these preferred securities for the purpose of
exercising the rights of these holders. The rights of the owner of any
beneficial interest in a global security will be limited to those established
by law and agreements between such owners and depository participants or
Euroclear and Cedel; provided that no such agreement will give any rights to
any person against the applicable Trust or property trustee without the written
consent of these parties.
Transfer of Beneficial Interests in Global Securities
Global securities may not be transferred as a whole except under the
following circumstances:
. by the depositary to a nominee of the depositary;
. by a nominee of the depositary to the depositary or another nominee of
the depositary; or
. by the depositary or any such nominee to a successor depositary or a
nominee of such successor depositary.
Interests of beneficial owners in a global security may be transferred or
exchanged for preferred securities not represented by a global security and
preferred securities not represented by a global security may be transferred or
exchanged for global securities in accordance with rules of the depositary.
Amendments
Amendments Without Consent of Holders of Preferred Securities
Each declaration of trust may be amended without the consent of the holders
of the preferred securities:
. to cure any ambiguity;
. to correct or supplement any provisions in the declaration of trust that
may be defective or inconsistent with any other provision in the relevant
declaration of trust;
. to add to our covenants, restrictions or obligations, as sponsor of the
Trusts;
. to conform to any change in Rule 3a-5 under the Investment Company Act of
1940 or written change in interpretation or application of Rule 3a-5
under the Investment Company Act of 1940 by any legislative body, court,
government agency or regulatory authority; or
. to modify, eliminate or add to any provisions as necessary to the
relevant declaration of trust to ensure that the Trust will be classified
for United States federal income tax purposes as a grantor trust at all
times that any preferred securities or common securities are outstanding
or to
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<PAGE>
ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act of 1940;
provided that any action described in this sentence may be taken only if it
does not adversely affect in any material respect the rights of the holders of
preferred securities or common securities.
Amendment With Consent of Holders of Preferred Securities and Common
Securities
Without the consent of each holder of the preferred securities and the
common securities, the relevant declaration of trust may not be amended to:
. change the amount or timing of any distribution of the preferred
securities and the common securities or otherwise adversely affect the
amount of any distribution required to be made on the preferred
securities and the common securities;
. restrict the right of a holder of preferred securities to institute suit
for the enforcement of any payment owed on these securities; or
. change the voting requirements and other provisions relating to
amendments.
Without the consent of 66 2/3% of the holders of outstanding preferred
securities and common securities voting as a single class, the relevant
declaration of trust may not be amended to:
(1) adversely affect the powers, preferences or special rights of the
preferred securities and the common securities; or
(2) result in the dissolution, winding-up or termination of the applicable
Trust other than pursuant to the terms of the relevant declaration of
trust;
provided that, if any amendment or proposal referred to in clause (1) above
would adversely affect only the preferred securities or the common securities,
then only the affected class will be entitled to vote on such amendment or
proposal.
Amendments With Consent of Holders of Common Securities
Without the consent of the holders of a majority in liquidation amount of
the common securities, the relevant declaration of trust may not be amended to
change the rights of the holders of the common securities to increase or
decrease the number of, and appoint and remove trustees.
Provisions that May Not be Amended
Under no circumstances may the following provisions of the relevant
declaration of trust be amended:
. to cause the applicable Trust to be classified other than as a grantor
trust for United States federal income tax purposes;
. to reduce or otherwise adversely affect the powers of the property
trustee in contravention of the Trust Indenture Act of 1939; and
. to cause the applicable Trust to be deemed to be an "investment company"
required to be registered under the Investment Company Act of 1940.
Meetings of the Holders of Securities
Meetings
The regular trustees of any issue of preferred securities may call a meeting
of the holders of the securities on any matter on which these securities are
entitled to act under the relevant declaration of trust. In addition, the
holders of at least 10% in liquidation amount of issue of preferred securities
may direct the regular trustees to call such a meeting. The regular trustees
are required to give notice of any such meeting at least 7 days but not more
than 60 days before the date of that meeting. The regular trustees, in their
sole discretion, will establish all other provisions relating to meetings of
holders of preferred securities not stated below.
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<PAGE>
Action by Written Consent
Whenever a vote, consent or approval of the holders of preferred securities
is permitted or required, that vote, consent or approval may be given at the
meeting. Any action that may be taken at a meeting of these holders may be
taken without a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by the holders owning not less than
the minimum amount of preferred securities in liquidation amount that would be
necessary to authorize or take such action at the meeting itself.
Proxies
Each holder of a preferred security may authorize any person to act for it
by proxy on all matters but proxies will not be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy. Every
proxy will be revocable at the pleasure of the holder of preferred securities
executing the proxy. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies will be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the applicable Trust were a Delaware
corporation and the holders of the preferred securities were stockholders of a
Delaware corporation.
Governing Law
Each declaration of trust and the related preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware.
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<PAGE>
DESCRIPTION OF THE GUARANTEES
The following description of the terms and provisions of the guarantees
summarizes certain general terms that will apply to each guarantee that we
deliver in connection with a series of preferred securities. This description
is not complete, and we refer you to the form of the guarantee agreement, a
copy of which we filed as an exhibit to the registration statement of which
this prospectus is a part.
When a Trust sells a series of its preferred securities, we will execute and
deliver a guarantee of that series of preferred securities under a guarantee
agreement for the benefit of the holders of these preferred securities. Only
one guarantee will be issued by us in connection with the issuance of preferred
securities by the applicable Trust. Each guarantee agreement will be qualified
as an indenture under the Trust Indenture Act of 1939. Unless the applicable
prospectus supplement states otherwise, The Chase Manhattan Bank will act as
indenture trustee under each guarantee agreement. The guarantee trustee will
hold each guarantee for the benefit of the holders of the preferred securities
of the applicable Trust.
Specific Terms of the Guarantees
Except as stated in the applicable prospectus supplement, we will
irrevocably and unconditionally agree to pay in full the following payments or
distributions on each corresponding series of preferred securities, to the
extent that they are not paid by, or on behalf of, the applicable Trust:
. any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the applicable Trust has
sufficient funds available for those payments at the time;
. the redemption price regarding any preferred securities called for
redemption, to the extent that the applicable Trust has sufficient funds
available for those redemption payments at such time; and
. upon a voluntary or involuntary dissolution, winding up or liquidation of
the applicable Trust, unless the corresponding series of junior
subordinated debentures are distributed to holders of the preferred
securities, the lesser of:
. the total liquidation amount of the preferred securities and all
accumulated and unpaid distributions on them to the date of payment; and
. the amount of assets of the applicable Trust remaining available for
distribution to holders of the preferred securities.
Our obligation to make the payments described above under the guarantee may
be satisfied by direct payment of the required amounts by us to the holders of
the applicable preferred securities or by causing the applicable Trust to pay
such amounts to these holders. In addition, our obligation to make the payments
described above will exist regardless of any defense, right of setoff or
counterclaim that the applicable Trust may have or assert.
Each guarantee will apply only to the extent that the applicable Trust has
sufficient funds available to make the required payments. If we do not make
interest payments on the junior subordinated debentures held by the applicable
Trust, then the Trust will not be able to pay distributions on the preferred
securities issued by the Trust and will not have funds legally available for
these payments.
Nature of the Guarantee
We will, through the relevant declaration of trust, the guarantee, the
junior subordinated debentures and the indenture, taken together, fully and
unconditionally guarantee the applicable 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
guarantee. It is only the combined operation of these documents that has the
effect of providing a full and unconditional guarantee of the applicable
Trust's obligations under the preferred securities.
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<PAGE>
Each guarantee will constitute a guarantee of payment and not of collection.
This means that the guaranteed party may institute a legal proceeding directly
against us to enforce its rights under a guarantee without first instituting a
legal proceeding against any other person or entity. In addition, each
guarantee will not be discharged except by payment of the amounts due under it
in full to the extent they have not been paid by the applicable Trust or upon
distribution of junior subordinated debentures to the holders of the preferred
securities in exchange for all of these preferred securities.
Subordination of Common Securities
We also will irrevocably and unconditionally guarantee the obligations of
the applicable Trust regarding that Trust's common securities to the same
extent as its guarantee of the applicable preferred securities, except that
upon the occurrence and the continuation of a Trust Enforcement Event regarding
the applicable Trust, holders of these preferred securities will have priority
over holders of the common securities regarding distributions and payments on
liquidation, redemption or otherwise.
Ranking
Each guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all of our other liabilities to
the same extent as the junior subordinated debentures.
The guarantees will not place a limitation on the amount of additional
senior debt that may be incurred by us.
Certain Covenants of Provident Financial Group, Inc.
In general, we will covenant in each guarantee that, so long as any
preferred securities issued by a Trust remain outstanding, if
. there shall have occurred any event of default under the indenture
regarding the applicable series of junior subordinated debentures;
. we shall be in default regarding its payment of any obligations under the
related guarantee; or
. we shall have given notice of our election to defer interest payments on
the junior subordinated debentures, as described below under the caption
"Description of the Junior Subordinated Debentures--Option to Defer
Interest" and we shall not have rescinded that notice or begun making
such payments,
then we will not, and will not permit any subsidiary to, do the following:
. to declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital
stock; or
. make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our debt securities that rank on a par with
or junior to the junior subordinated debentures or make any payments
regarding any guarantee by us of the debt securities of any of our
subsidiaries if such guarantee ranks on a par with or junior to these
junior subordinated debentures.
At any time, however, we may do the following:
. pay dividends or make distributions in our common stock;
. make payments under the applicable guarantee made by us regarding
preferred securities of the applicable Trust;
. declare a dividend in connection with the implementation of a
shareholders' rights plan, or issue stock under any such plan in the
future, or redeem or repurchase any rights issued pursuant to such a
plan; and
. purchase common stock related to the issuance of common stock or rights
under any of our benefit plans.
Amendments
Unless otherwise specified in the applicable prospectus supplement, each
guarantee may be amended under the following two circumstances:
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<PAGE>
. regarding changes to the guarantee that do not materially adversely
affect the rights of holders of the applicable preferred securities, no
consent of such holders will be required; and
. all other amendments to the guarantee may not be made without the prior
approval of the holders of not less than a majority of the total
liquidation amount of the outstanding preferred securities to which the
guarantee relates.
The manner of obtaining the necessary approvals to amend a guarantee are the
same as for holders of the preferred securities, which are described above
under "Description of the Preferred Securities--Meetings of the Holders of
Securities".
Assignment
All guarantees and agreements contained in a guarantee will bind our
successors, assigns, receivers, trustees and representatives and will inure to
the benefit of the holders of the related preferred securities then
outstanding.
Events of Default and Remedies
An event of default under a guarantee will occur upon our failure to make
any of our payments or perform any of our other obligations under it.
The holders of not less than a majority in total liquidation amount of the
preferred securities to which a guarantee relates have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the guarantee trustee regarding the guarantee or to direct the exercise of any
trust or power conferred upon the guarantee trustee under such guarantee.
If the guarantee trustee fails to enforce a guarantee, then any holder of
the corresponding series of preferred securities may institute a legal
proceeding directly against us to enforce the guarantee trustee's rights under
that guarantee, without first instituting a legal proceeding against the
applicable Trust that issued the preferred securities, the guarantee trustee or
any other person or entity.
Information Concerning the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance of a
default by us in performance of a guarantee, undertakes to perform only such
duties as are specifically set forth in the guarantee. After a default under
the guarantee, which has not been cured or waived, that is actually known to a
responsible officer of the guarantee trustee, the guarantee trustee must
exercise the same degree of care and skill as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs. Subject to
this provision, the guarantee trustee is under no obligation to exercise any of
the powers vested in it by a guarantee at the request of any holder of
preferred securities to which the guarantee relates unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred by such action.
Termination of the Guarantees
Each guarantee will terminate upon any of the following events:
. the full payment of the redemption price of all preferred securities of
the applicable Trust;
. the full payment of the amounts payable upon liquidation of the
applicable Trust; or
. the distribution of the junior subordinated debentures held by the
applicable Trust to the holders of the preferred securities of the Trust
in exchange for all of the preferred securities of the Trust.
Each guarantee will continue to be effective or will be reinstated, if at any
time any holder of related preferred securities issued by the applicable Trust
is required to restore payment of any sums paid under the applicable preferred
securities or the guarantee.
Governing Law
The guarantees will be governed by the laws of the State of New York,
including any matters of interpretation under them.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
The following summary of the terms and provisions of our junior subordinated
debentures that will be issued and sold by us and purchased by the applicable
Trust that issues a series of preferred securities. It is not complete, and we
refer you to the indenture and the form of the junior subordinated debentures,
which we filed as exhibits to the registration statement of which this
prospectus is a part.
Unless otherwise specified in the applicable prospectus supplement, each
time that we issue a new series of junior subordinated debentures that series
will be issued under an indenture between us and The Chase Manhattan Bank, as
indenture trustee. The indenture provides for the issuance from time to time of
junior subordinated debentures in an unlimited dollar amount and an unlimited
number of series. Only one series of the junior subordinated debentures will be
issued by each Trust in connection with the issuance of preferred securities by
that Trust.
Unless the applicable prospectus supplement states otherwise, we will issue
each new series of junior subordinated debentures in a total principal amount
equal to the total liquidation amount of the preferred securities that the
applicable Trust sells to the public plus the total amount of common securities
that the applicable Trust sells to us. Concurrently with the issuance of the
preferred securities, the applicable Trust will invest the proceeds from that
issuance and the consideration paid by us for the common securities in the
corresponding series of junior subordinated debentures issued by us. Unless the
applicable prospectus supplement states otherwise, the interest payment
provisions for the junior subordinated debentures will correspond to the
distribution provisions of the corresponding series of preferred securities.
Specific Terms of Each Series
Each time that we issue and sell a new series of junior subordinated
debentures to the applicable Trust, the prospectus supplement relating to that
new series will specify the particular amount, price and other terms of these
securities. These terms will include:
. the title of the junior subordinated debentures of the series, which will
distinguish the junior subordinated debentures of the series from all
other junior subordinated debentures;
. the limit, if any, upon the total principal amount of the junior
subordinated debentures of the series which may be issued;
. the maturity or the method of determining the maturity;
. the rate or rates, if any, at which the junior subordinated debentures of
the series will bear interest, if any, the rate or rates and extent to
which interest on overdue amounts, if any, will be payable in respect of
any junior subordinated debentures of the series;
. the interest payment dates and the record dates for the interest payable
on any interest payment date or the method by which any of the foregoing
will be determined;
. the place or places where the principal of and premium, if any, and
interest on the junior subordinated debentures of the series will be
payable, the place or places where the junior subordinated debentures of
the series may be presented for registration of transfer or exchange and
the place or places where notices and demands to or upon us regarding the
junior subordinated debentures of the series may be made;
. the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the junior subordinated debentures of the series may be redeemed, in
whole or in part, at our option;
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. our obligation or our right, if any, to redeem, repay or purchase the
junior subordinated debentures of the series pursuant to any sinking
fund, amortization or analogous provisions or upon the happening of a
specified event, or at the option of a holder of that security, and the
period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which and
the other terms and conditions upon which junior subordinated debentures
of the series will be redeemed, repaid or purchased, in whole or in part,
pursuant to that obligation;
. the denominations in which any junior subordinated debentures of the
series will be issuable, if other than denominations of $25 and any
integral multiple thereof;
. if other than U.S. dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any)
and interest, if any, on the junior subordinated debentures of the series
will be payable, or in which the junior subordinated debentures of the
series will be denominated;
. the additions, modifications or deletions, if any, in the events of
default described under the caption "--Events of Default" below or our
covenants described in this prospectus or the applicable prospectus
supplement regarding the junior subordinated debentures of the series;
. if other than the principal amount thereof, the portion of the principal
amount of junior subordinated debentures of the series that will be
payable upon declaration of acceleration of the maturity of the junior
subordinated debentures;
. the additions or changes, if any, to the indenture regarding the junior
subordinated debentures of the series as will be necessary to permit or
facilitate the issuance of the junior subordinated debentures of the
series in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;
. any index or indices used to determine the amount of payments of
principal of and premium, if any, on the junior subordinated debentures
of the series or the manner in which the amounts will be determined;
. whether the junior subordinated debentures of the series, or any portion
thereof, will initially be issuable in the form of a temporary global
security representing all or the portion of the junior subordinated
debentures of the series and provisions for the exchange of the temporary
global security for definitive junior subordinated debentures of the
series;
. whether any junior subordinated debentures of the series will be issuable
in whole or in part in the form of one or more global securities and, in
the case, the respective depositaries for the global securities, the form
of any legend or legends which will be borne by any global security, if
applicable;
. the appointment of any paying agent or agents for the junior subordinated
debentures of the series;
. the terms of any right to convert or exchange junior subordinated
debentures of the series into any other junior subordinated debentures or
other securities or property of ours, and the additions or changes, if
any, to the indenture regarding the junior subordinated debentures of the
series to permit or facilitate the conversion or exchange;
. the relative degree, if any, to which the junior subordinated debentures
of the series will be senior to or be subordinated to other series of
junior subordinated debentures in right of payment, whether the other
series of junior subordinated debentures are outstanding or not; and
. any other terms of the junior subordinated debentures of the series
(which terms will not be inconsistent with the provisions of the
indenture).
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Ranking
Unless otherwise stated in the applicable prospectus supplement, each series
of junior subordinated debentures will be unsecured and will rank junior and be
subordinate in right of payment to all our senior debt.
Subordination
Our obligations under the junior subordinated debentures will be subordinate
to all our existing and future senior debt. In addition, the junior
subordinated debentures will be effectively subordinated to all existing and
future obligations of our subsidiaries. Our obligations under the guarantees
are subordinated to the same extent as the junior subordinated securities. This
means that we cannot make any payments on the junior subordinated debentures or
the guarantees if we are in default on any of its senior debt.
In addition, in the event of our bankruptcy, liquidation or dissolution, its
assets must be used to pay off its senior obligations in full before any
payments may be made on the junior subordinated debentures or the guarantees.
The indenture, the guarantees and the declaration of trusts do not limit our
ability to incur additional senior debt. For more information, see above under
the caption "--Ranking" in this section and below under the caption
"Description of the Guarantees--Ranking" in this prospectus.
As a holding company, our assets primarily consist of the equity securities
of our subsidiaries. As a result, our cash flow and consequent ability to
service our debt, including the junior subordinated debentures, are dependent
upon the earnings of our subsidiaries and the distribution of those earnings to
us, or upon loans or other payments of funds by those subsidiaries to us. Our
subsidiaries are separate and distinct legal entities and will have no
obligation, contingent or otherwise, to pay any interest or principal on the
junior subordinated debentures or to make any funds available therefor, whether
by dividends, loans or other payments. The payment of dividends by our
subsidiaries is contingent upon the earnings of those subsidiaries and is
subject to various business considerations in addition to the requirements of
federal bank and other regulators and contractual restrictions.
In addition, since the junior subordinated debentures will be obligations of
a holding company, the ability of holders of the junior subordinated debentures
to benefit from any distribution of assets of any subsidiary upon the
liquidation or reorganization of such subsidiary is subordinate to the prior
claims of present and future creditors of that subsidiary.
Distribution of Junior Subordinated Debentures
Unless stated otherwise in the applicable prospectus supplement, we may
dissolve and liquidate a Trust and, thereafter, the property trustee would
distribute to holders of the corresponding preferred securities and common
securities the junior subordinated debentures of the series that such Trust had
held as its sole asset. If the property trustee distributes the junior
subordinated debentures to the holders of the preferred securities and the
common securities upon the dissolution and liquidation of such Trust, then the
junior subordinated debentures will be issued in denominations of $25 principal
amount and integral multiples thereof unless otherwise specified in the
applicable prospectus supplement. We anticipate that the junior subordinated
debentures would be distributed in the form of one or more global securities
and that DTC, or any successor depositary for the preferred securities, would
act as depositary for the junior subordinated debentures. The depositary
arrangements for the junior subordinated debentures would be substantially the
same as those in effect for the preferred securities. For a description of DTC
and the terms of the depositary arrangements relating to payments, transfers,
voting rights, redemption and other notices and other matters for the preferred
securities, see the caption below under "Book-Entry Issuance" in this
prospectus.
Option to Defer Interest Payments
Option to Defer Interest Payments
Unless otherwise stated in the applicable prospectus supplement, we will
have the right to
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defer interest payments on the junior subordinated debentures for up to five
years of consecutive interest payment periods if the junior subordinated
debentures are not in default, but the deferral of interest payments cannot
extend beyond the maturity date of the series of junior subordinated
debentures. During the deferral period, interest will continue to accrue on the
junior subordinated debentures, compounded on the same periodic basis upon
which interest otherwise accrues and deferred interest payments will accrue
additional interest. No interest will be due and payable on the junior
subordinated debentures until the end of the deferral period except upon a
redemption of the junior subordinated debentures during a deferral period.
We may pay at any time all or any portion of the interest accrued to that
point during a deferral period. At the end of the deferral period, or on any
redemption date, we will be obligated to pay all accrued and unpaid interest.
Once we pay accrued and unpaid interest on the junior subordinated debentures,
we will again be able to defer interest payments on the junior subordinated
debentures as described above.
Certain Limitations During a Deferral Period
During any deferral period, we will not and our subsidiaries will not be
permitted to:
. pay a cash dividend or make any other payment or distribution on our
capital stock;
. redeem, purchase or make a liquidation payment on any of our capital
stock;
. make an interest, principal or premium payment, or repay, repurchase or
redeem, any of our junior subordinated debentures that rank equal with or
junior to the junior subordinated debentures; or
. make any guarantee payment regarding any guarantee by us of junior
subordinated debentures of any of our subsidiaries, if the guarantee
ranks equal with or junior to the junior subordinated debentures.
However, at any time, including during a deferral period, we will be
permitted to:
. pay dividends or distributions in additional shares of its capital stock;
. make payments under the guarantee of the series of the preferred
securities and the common securities;
. declare or pay a dividend in connection with the implementation of a
shareholders' rights plan, or issue stock under such a plan or repurchase
such rights; and
. purchase common stock for reissuance pursuant to an employee benefit,
dividend reinvestment or stock repurchase plan, or for issuance in an
acquisition transaction that was entered into prior to the commencement
of that deferral period.
Notice Provisions
If the property trustee is the sole holder of the junior subordinated
debentures, we will give the applicable Trust, the applicable regular trustees
and property trustee notice if we decide to defer interest payments on the
junior subordinated debentures. We will give that notice one business day
before the earlier of:
. the next date distributions on the preferred securities are payable; or
. the date the applicable Trust is required to give notice to the New York
Stock Exchange (or any other applicable self-regulatory organization) or
to holders of the corresponding series of preferred securities of the
record date or the date any distribution is payable, but in any event at
least one business day before the record date.
The regular trustees will give notice to the holders of preferred securities
if we decide to defer interest payments on the junior subordinated debentures.
If the property trustee is not the sole holder of the junior subordinated
debentures, we will give the holders notice of any deferral period ten business
days prior to the earlier of:
. the next interest payment date; or
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. the date we are required to give notice to the New York Stock Exchange
(or any other applicable self-regulatory organization) or to holders of
the junior subordinated debentures of the record date or payment, date of
any related interest payment, but in any event at least two business days
prior to the record date.
Covenants
Limitation on Certain Payments
We will covenant that, so long as any preferred securities issued by a Trust
remain outstanding, if
. there will have occurred any event of default under the indenture;
. we will be in default regarding our payment of any obligations under our
guarantee regarding the Trust; or
. we will have given notice of our election to defer interest payments, as
described above under "--Option to Defer Interest and Notices", or such
deferral period or any extension of it will be continuing;
then we will not, and will not permit any of our subsidiaries to:
. declare or pay any cash dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment regarding, any of our
capital stock; or
. make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our junior subordinated debentures that rank
on a par with or junior in interest to such junior subordinated
debentures;
. or make any guarantee payments regarding any guarantee by us of the
junior subordinated debentures of any of our subsidiaries if such
guarantee ranks on a par with or junior in interest to such junior
subordinated debentures.
However, at any time, including during a deferral period, we may do the
following:
. pay dividends or distributions in our common stock;
. make payments under the applicable guarantee made by us in respect of the
preferred securities of the applicable Trust;
. make 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; and
. purchase common stock related to the issuance of common stock or rights
under any of our benefit plans.
Certain Affirmative Covenants
We will covenant to:
. maintain directly or indirectly 100% ownership of the common securities
of the applicable Trust;
. cause the applicable Trust to remain a Delaware business trust and not to
voluntarily dissolve, windup, liquidate or be terminated, except as
permitted by the relevant declaration of trust;
. use its commercially reasonable efforts to ensure that the trust will not
be an "investment company" for purposes of the Investment Company Act of
1940; and
. take no action that would be reasonably likely to cause the trust to be
classified as an association or a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.
Limitation on Consolidation, Merger and Certain Sales
We may not consolidate with or merge into any other entity or sell or lease
our properties and assets substantially as an entirety to any entity, unless:
. the resulting entity shall be a corporation, partnership or trust
organized under U.S. law;
. the resulting entity assumes our obligations under the junior
subordinated debentures and the indenture;
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. there would be no event of default under the indenture immediately after
giving effect to the transaction; and
. in the case of the junior subordinated debentures of a series held by a
Trust, the consolidation, merger, conveyance, transfer or lease is
permitted under the relevant declaration of trust and the guarantee and
does not give rise to any breach or violation of these documents.
No Event Risk Covenant
In addition, the indenture does not contain any covenants that provide
holders of junior subordinated debentures protection in the event of a highly
leveraged transaction, reorganization, restructuring, merger or other similar
transaction involving us, which may adversely affect holders of junior
subordinated debentures.
Denominations
The junior subordinated debentures will be issuable only in registered
form, without coupons, and only in denominations of $25 and any integral
multiples thereof, unless the applicable prospectus supplement states
otherwise.
Events of Default, Acceleration, Rescission of Acceleration and Waivers
Events of Default
An event of default regarding any series of junior subordinated debentures
under the indenture is any one of the following events:
. default in the payment of interest, including interest on overdue
amounts, for a period of 30 days, subject to our right to defer interest
payments as described above under the caption "--Option to Defer Interest
Payments" in this section;
. default in the payment of the principal of or premium, if any;
. default in the performance, or breach, in any material respect, of any of
our covenants or warranties for a period of 90 days after notice to us by
the indenture trustee or to us and the indenture trustee by holders of at
least 25% in principal amount of the outstanding junior subordinated
debentures of that series;
. certain events of bankruptcy, insolvency and reorganization involving us;
or
. any other event of default pertaining to the particular series of junior
subordinated debentures.
Acceleration
If an event of default of the junior subordinated debentures occurs and is
continuing, then the indenture trustee or the holders of at least 25% in total
principal amount of the outstanding junior subordinated debentures will have
the right to declare the principal and the interest due on these securities to
be due and payable immediately. If, upon such an event of default, the
indenture trustee or holders of at least 25% of the total principal amount of
the outstanding junior subordinated debentures fail to declare the payment of
all amounts on these securities to be due and payable immediately, then the
holders of at least 25% in total liquidation amount of the preferred
securities then outstanding will have the right to declare these amounts due
and payable immediately.
Rescission of Acceleration
At any time after a declaration of acceleration, as described in the
preceding paragraph, has been made and before a judgment or decree for payment
of the money due has been obtained by the indenture trustee, then the holders
of a majority in total principal amount of the outstanding junior subordinated
debentures may rescind the declaration of acceleration if both of the
following events have occurred:
. we have paid or deposited with the indenture trustee amounts sufficient
to pay the sum of:
(1) all overdue interest;
(2) the principal that has become due, other than by acceleration, and
interest on it at the rate borne by the junior subordinated
debentures;
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(3) interest on overdue interest at the rate borne by the junior
subordinated debentures, to the extent that that rate of interest is
lawful; and
(4) all amounts paid or advanced by the indenture trustee and its and
its counsel's reasonable fees and expenses; and
. all events of default regarding that series of junior subordinated
debentures have been cured or waived as described below under the caption
"--Waiver".
If the holders of the junior subordinated debentures fail to rescind the
declaration of acceleration, then the holders of a majority in total
liquidation amount of the preferred securities will have that right.
Waivers
In certain cases, the holders of a majority in principal amount of the
outstanding series of junior subordinated debentures may, on behalf of the
holders of all junior subordinated debentures of that series, waive any past
default or event of default regarding that series or compliance with certain
provisions of the indenture. The following defaults may not, however, be
waived:
. default in the payment of the principal of and premium or interest on any
of that series which has not been cured until that time; or
. a default regarding a covenant or provision of the indenture which cannot
be modified or amended,
without the consent of the holder of each outstanding junior subordinated
debenture of the series affected.
Notwithstanding the rights of the holders the junior subordinated debentures
to waive certain events of default, covenants and other provisions, as
described above, the holders of at least a majority of the total liquidation
amount of the outstanding preferred securities will be required to waive any
event of default or compliance with any covenant under the indenture.
Agreement by Purchasers of Certain Tax Treatment
Each junior subordinated debenture will provide that we and, by our
acceptance of the junior subordinated debenture, or a beneficial interest
therein, the other holders of that junior subordinated debenture intend that
the security constitutes debt and agrees to treat it as debt for United States
federal, local and state tax purposes.
Satisfaction and Discharge
At our request, the indenture will terminate as to the junior subordinated
debentures of any series (except as to any surviving rights of registration of
transfer or exchange of junior subordinated debentures) when either:
. all the junior subordinated debentures of that series have been delivered
to the indenture trustee for cancellation; or
. all the junior subordinated debentures of that series have become due and
payable, will become due and payable at their maturity within one year or
are to be called for redemption within one year and we have deposited
with the indenture trustee funds sufficient to make all remaining
interest and principal payments on the junior subordinated debentures of
that series.
Amendments
Amendments Without Consent of Holders
Without the consent of each holder of the junior subordinated debentures, we
may enter, together with the indenture trustee, into one or more supplemental
indentures to do the following:
. to evidence the succession of another party to us and the assumption by
that party of our covenants under the indenture;
. to add to our covenants for the benefit of the holders of the junior
subordinated debentures;
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. to cure any ambiguity, to correct or supplement any provision of the
indenture which may be inconsistent with any other or to make any other
provision which regarding matters or questions under the indenture;
provided that any such supplemental indenture may not materially
adversely affect the interests of the holders of the junior subordinated
debentures or the related preferred securities; or
. to comply with the requirements of the SEC to effect or maintain the
qualification of the Indenture under the Trust Indenture Act of 1939.
Amendments With Consent of Holders
Without the consent of each holder of an outstanding junior subordinated
debenture, we may not and the indenture trustee may not amend the indenture to
effect the following changes to the terms and provisions of the junior
subordinated debentures:
. to change their maturity;
. to change or reduce the principal amount due;
. to change the interest rate on or any installment of interest due;
. to change the place of payment or the currency in which payment is due;
. to impair the right to sue for enforcement of any such payment on or
after the maturity or redemption date of the junior subordinated
debentures;
. to modify the subordination provisions in a manner adverse to the holders
of the junior subordinated debentures;
. to reduce the outstanding principal amount of junior subordinated
debentures that is required for any supplemental indenture or the waiver
of defaults or Events of Default as defined in the indenture; or
. to modify this section regarding amendments or the provisions regarding
the waiver of past defaults;
provided that no such modifications may be made that adversely affects the
holders of the preferred securities.
Amendments Without Consent of Holders of Preferred Securities
Without the consent of each of the holders of preferred securities, no
amendment may be made to the indenture that adversely affects the rights of
these holders to directly institute a proceeding against us for the enforcement
of the payment of interest of or principal on the junior subordinated
debentures in the amount of such holders' total liquidation amount of preferred
securities.
Payments and Paying Agents
At our option, interest on any series of junior subordinated debentures may
be paid:
. by check mailed to the address of the person entitled thereto as it will
appear on the junior subordinated debentures register of the series; or
. by wire transfer in immediately available funds at the place and to the
account as designated by the person entitled to such payment.
Initially, the paying agent will be The Chase Manhattan Bank. We may change
the paying agent and may perform that role or have one of our subsidiaries act
as paying agent.
Registration, Transfer and Exchange
The indenture trustee will keep a security register to register the junior
subordinated debentures and to register the transfer and exchanges of junior
subordinated debentures for each Trust. Holders of junior subordinated
debentures may register the transfer of a security upon surrender of the
security thus exchanged or transferred. Holders of junior subordinated
debentures of any series may exchange their securities for an equal principal
amount of other junior subordinated debentures of different authorized
denominations of the same series and with the same terms. We will not charge a
fee to holders of junior subordinated debentures for any transfer or exchange
of these securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of securities.
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Mutilated, Destroyed, Lost and Stolen Securities
We will replace any mutilated, destroyed, lost or stolen junior subordinated
debenture in exchange for a new junior subordinated debenture of the same
series of like tenor and principal amount and other terms. Upon the issuance of
any new security, we may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses, including the fees and expenses of the trustee, connected
with it.
Information Regarding the Indenture Trustee
The indenture trustee, other than during the occurrence and continuance of a
default by us under the indenture, undertakes to perform only such duties as
are specifically set forth in the
indenture. After a default under the indenture, which has not been cured or
waived, that is actually known to a responsible officer of the indenture
trustee, the indenture trustee must exercise the same degree of care and skill
as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs. Subject to this provision, the indenture trustee is
under no obligation to exercise any of the powers vested in it by an indenture
at the request of any holder of junior subordinated debentures unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred by such action.
Governing Law
The indenture will be governed by the laws of the State of New York,
including any matters of interpretation under them.
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BOOK-ENTRY ISSUANCE
We have summarized below certain terms relating to the book-entry facilities
of the depositary for the preferred securities. To the extent that this summary
is inconsistent with the book-entry provisions and description of the preferred
securities in the accompanying prospectus supplement, you should rely on the
description in the accompanying prospectus supplement.
The preferred securities of each series will be represented by one or more
global securities that will be deposited with and registered in the name of DTC
or its nominee. This means that each time a Trust issues a new series of
preferred securities, it will not issue physical certificates that represent
ownership of the preferred securities to the purchasers of these securities.
Rather, the preferred securities will be represented by one or more global
securities. Each global security will be issued to DTC, or its nominee, and
held by or on behalf of DTC, or its nominee. DTC will keep a computerized
record of its participants (for example, a broker) whose clients have purchased
the preferred securities. Each participant will then keep a record of its
clients. Unless it is exchanged in whole or in part for a certificated
security, a global security may not be transferred. However, DTC, its nominees
and their successors may transfer a global security as a whole to one another.
In the event that junior subordinated debentures are distributed to holders
of the corresponding series of preferred securities and common securities, as
described under "Description of the Junior Subordinated Debentures--
Distribution of Junior Subordinated Debentures" in this prospectus, those
junior subordinated debentures would be represented by one or more global
securities. The book-entry and depositary arrangements for these securities
would be substantially similar to those described below for the preferred
securities.
Records of Beneficial Interests
Beneficial interests in a global security will be shown on, and transfers of
the global security will be made only through, records maintained by DTC and
its participants. DTC has provided the Trusts and us with the information that
follows. 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 United States 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
(which it terms its "direct participants") deposit with DTC. DTC also records
the settlements among direct participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
direct participants' accounts. This eliminates the need to exchange
certificates in definitive form. Direct participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on
file with the SEC.
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.
When you purchase preferred securities through the DTC system, the purchases
must be made by or through a direct participant, who will receive credit for
the preferred securities on DTC's records. When you purchase the preferred
securities, you will be the beneficial owner. Your ownership interest will only
be recorded on the direct (or indirect) participants' records. DTC will have no
knowledge of your individual ownership of the preferred securities. DTC's
records only show the identity of the direct participants and the amount of the
preferred securities held by or
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through them. You will not receive a written confirmation of your purchase or
sale or any periodic account statement directly from DTC. Instead you will
receive these from your direct (or indirect) participant. As a result, the
direct (or indirect) participants are responsible for keeping accurate account
of the securities holdings of their customers like you.
Wiring of Payments
Each time that a Trust issues a new series of preferred securities, the
property trustee will wire payments on the preferred securities to DTC's
nominee. We, the Trust and the property trustee will treat DTC's nominee as the
owner of each global security for all purposes. As a result, we, the Trust, the
property trustee and any paying agent will have no direct responsibility or
liability to pay amounts due on the global security to you or any other
beneficial owners in the global security.
Redemption
Any redemption notices will be sent by us and the Trust directly to DTC, who
will, in turn, inform the direct participants (or the indirect participants),
who will then contact you as a beneficial holder. If less than all of the
preferred securities are being redeemed, DTC will proportionally allot the
amount of the interest of each direct participant to be redeemed.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation amount, to credit direct participants' accounts on the payment
date based on their holding of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to direct participants whose accounts are credited
with preferred securities on a record date, by using an omnibus proxy. Payments
by participants to owners of beneficial interests in the global securities, and
voting by participants, will be based on the customary practices between the
participants and owners of beneficial interests. However, payments will be the
responsibility of the participants and not of DTC, the property trustee, us or
the Trust.
Exchanges
Preferred securities represented by a global security will be exchangeable
for certificated securities with the same terms in authorized denominations
only if:
. DTC is unwilling or unable to continue as depositary or if DTC ceases to
be a clearing agency registered under applicable law and a successor
depositary is not appointed by the Trust within 90 days; or
. the Trust decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary).
If the book-entry only system is discontinued, the property trustee will
keep the registration books for the preferred securities of each Trust at its
corporate office.
Euroclear and Cedel
Links have been established among DTC, Cedel and Euroclear, to facilitate
the initial issuance of the preferred securities and cross-market transfers of
the preferred securities associated with secondary market trading.
Although DTC, Cedel and Euroclear have agreed to the procedures provided
below in order to facilitate transfers of the preferred securities among their
participants, they are under no obligation to perform or continue to perform
such procedures and such procedures may be modified or discontinued at any
time. Cedel and Euroclear will hold interests on behalf of their participants
through customers' securities accounts in Cedel's and Euroclear's names on the
books of their respective depositaries (which we refer to as the "U.S.
depositaries"), which in turn will hold such interests in customers' securities
accounts in the depositaries' names on the books of DTC.
When preferred securities are to be transferred from the account of a DTC
participant to the account of a Cedel participant or a Euroclear participant,
the purchaser must send instructions to Cedel or Euroclear through a
participant at least one business day prior to settlement. Cedel or Euroclear,
as the case may be, will instruct the relevant U.S. depositary to
27
<PAGE>
receive the preferred securities against payment. Payment will then be made by
such U.S. depositary to the DTC participant's account against delivery of the
preferred securities. After settlement has been completed, the preferred
securities will be credited to the respective clearing system and by the
clearing system, in accordance with its usual procedures, to the Cedel
participant's or Euroclear participant's account. Credit for the preferred
securities will appear on the next day (in European time).
Because the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending preferred securities
to the relevant U.S. depositary for the benefit of Cedel participants or
Euroclear participants. The sale proceeds will be available to the DTC seller
on the settlement date. Thus, to the DTC participant, a cross-market
transaction will settle no differently than a trade between two DTC
participants.
Due to time zone differences in their favor, Cedel participants or Euroclear
participants may employ their customary procedures for transactions in which
preferred securities are to be transferred by the respective clearing system
through the relevant U.S. depositary to another DTC participant. The seller
must send instructions to Cedel or Euroclear through a participant at least one
business day prior to settlement. In these cases, Cedel or Euroclear will
instruct its U.S. depositary to credit the preferred securities to the DTC
participant's account against payment. The payment will then be reflected in
the account of the Cedel participant or Euroclear participant the following
day, and receipt of the cash proceeds in the Cedel participant's or Euroclear
participant's account will be back-valued to the value date (which would be the
preceding day, when settlement occurs in New York). If the Cedel participant or
Euroclear participant has a line of credit with its respective clearing system
and elects to draw on such line of credit in anticipation of receipt of the
sale proceeds in its account, the back-valuation may substantially reduce or
offset any overdraft charges incurred over the one-day period. If settlement is
not completed on the intended value date (i.e., the trade fails), receipt of
the cash proceeds in the Cedel participant's or Euroclear participant's account
would instead be valued as of the actual settlement date.
Year 2000 Problem
DTC's management is aware that some computer applications, systems and the
like for processing data that are dependent upon calendar dates, including
dates before, on, and after January 1, 2000, may encounter "Year 2000
problems". DTC has informed its participants and other members of the financial
community that it has developed and is implementing a program so that its
systems, as the same relate to the timely payment of distributions (including
principal and interest payments) to security holders, book-entry deliveries and
settlement of trades within DTC, continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which
is complete. Additionally, DTC's plan includes a testing phase, which is
expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third-party vendors from whom DTC licenses software and hardware, and
third-party vendors on whom DTC relies for information of the provision of
services, including telecommunications and electrical utility service
providers, among others. DTC has informed its participants and other members of
the financial community that it is contacting (and will continue to contact)
third-party vendors from whom DTC acquires services to impress upon them the
importance of such service being Year 2000 compliant and determine the extent
of their efforts for Year 2000 remediation (and, as appropriate, testing) of
their services. In addition, DTC is in the process of developing such
contingency plans as it deems appropriate.
28
<PAGE>
ERISA MATTERS
We may be considered a "party in interest" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended (which we refer to
as "ERISA"), and a "disqualified person" under corresponding provisions of the
Code, regarding certain employee benefit plans. Certain transactions between an
employee benefit plan and a party in interest or disqualified person may result
in "prohibited transactions" within the meaning of ERISA and the Code. Any
employee benefit plan proposing to invest in the preferred securities should
consult with its legal counsel.
PLAN OF DISTRIBUTION
The Trusts may sell their preferred securities in any of three ways:
. through underwriters;
. through agents; or
. directly to a limited number of institutional purchasers or to a single
purchaser.
The prospectus supplement for each series of preferred securities will
describe that offering, including:
. the name or names of any underwriters;
. the purchase price and the proceeds to us from that sale;
. any underwriting discounts and other items constituting underwriters'
compensation;
. any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and
. any securities exchanges on which the Securities of that series may be
listed.
Underwriters
If underwriters are used in the sale, we will execute an underwriting
agreement with those underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase preferred
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all of the preferred securities of a series if any are
purchased.
The preferred securities will be acquired by the underwriters for their own
account and may be resold by them from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Underwriters may be
deemed to have received compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from the purchasers
of preferred securities for whom they may act as agent. Underwriters may sell
preferred securities to or through dealers. These dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
We may authorize underwriters to solicit offers by certain types of
institutions to purchase preferred securities from us at the public offering
price stated in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
If we sell preferred securities pursuant to these delayed delivery contracts,
the prospectus supplement will state that as well as the conditions to which
these delayed delivery contracts will be subject and the commissions payable
for that solicitation.
Agents
We may also sell preferred securities through agents designated by us from
time to time. We will name any agent involved in the offer or sale of the
preferred securities and will list commissions payable by us to these agents in
the applicable prospectus supplement. These agents will be acting on a best
efforts basis to solicit purchases for the period of its appointment, unless we
state otherwise in the prospectus supplement.
29
<PAGE>
Direct Sales
We may sell preferred securities directly to purchasers. In this case, we
will not engage underwriters or agents in the offer and sale of preferred
securities.
Indemnification
We may indemnify underwriters, dealers or agents who participate in the
distribution of preferred securities against certain liabilities, including
liabilities under the Securities Act of 1933, and agree to contribute to
payments which these underwriters, dealers or agents may be required to make.
No Assurance of Liquidity
Each series of preferred securities will be a new issue of securities with
no established trading market. Any underwriters that purchase preferred
securities from us may make a market in these preferred securities. The
underwriters will not be obligated, however, to make such a market and may
discontinue market-making at any time without notice to holders of the
preferred securities. As a result, we cannot assure you that there will be
liquidity in the trading market for any preferred securities of any series.
NASD Requirements
The underwriting and agency arrangements for any offering of the capital
securities will comply with the requirements of Rule 2720 of the National
Association of Securities Dealers, Inc. (which we refer to as the "NASD")
regarding an NASD member firm's participating in distributing its affiliate's
securities.
LEGAL OPINIONS
Certain matters of Delaware law relating to each Trust will be passed upon
for the Trusts and Provident Financial Group, Inc. by Richards, Layton &
Finger, P.A., Wilmington, Delaware. The due authorization, execution and
delivery of the junior subordinated debentures and the guarantees will be
passed upon for Provident Financial Group, Inc. and the Trusts by Mark Magee,
Esq., General Counsel to Provident Financial Group, Inc., Cincinnati, Ohio. The
validity of the junior subordinated debentures and the guarantees will be
passed upon for Provident Financial Group, Inc. and the Trusts by Simpson
Thacher & Bartlett, New York City, New York. Unless otherwise specified in the
applicable prospectus supplement, the validity of the junior subordinated
debentures and the guarantees will be passed upon for any underwriters or
agents by Simpson Thacher & Bartlett. Simpson Thacher & Bartlett will rely as
to matters of Ohio law on the opinion of Mark Magee, Esq., General Counsel to
Provident Financial Group, Inc., and Mark Magee, Esq., General Counsel to
Provident Financial Group, Inc. will rely as to matters of New York law on the
opinion of Simpson Thacher & Bartlett. Certain United States federal income
taxation matters also will be passed upon for Provident Financial Group, Inc.
and the Trusts by Simpson Thacher & Bartlett.
At March 31, 1999, attorneys at Richards, Layton & Finger, P.A. and Simpson
Thacher & Bartlett, together with their immediate families, beneficially owned
less than 5% of the outstanding shares of Provident Financial Group, Inc.'s
common stock.
EXPERTS
The consolidated financial statements as of December 31, 1998 and 1997, and
for each of the three years in the period ended December 31, 1998 incorporated
in this prospectus by reference from our Annual Report on Form 10-K for the
year ended December 31, 1998 have been audited by Ernst & Young LLP,
independent auditors, as stated in their reports, which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
30
<PAGE>
PART II
Item 14. Other Expenses of Issuance and Distribution
The following is an itemization of all fees and expenses incurred or
expected to be incurred by the Registrants in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All but the Securities and Exchange Commission
registration fee are estimates and remain subject to future contingencies.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................... $ 55,600
NASD fee.............................................................. 3,000
New York Stock Exchange listing fee................................... 182,500
Legal fees and expenses............................................... 75,000
Accounting fees and expenses.......................................... 10,000
Trustees' fees and expenses........................................... 40,000
Rating Agency fees.................................................... 100,000
Blue Sky fees and expenses............................................ 2,500
Printing and engraving fees and expenses.............................. 30,000
Miscellaneous fees and expenses....................................... 2,500
--------
Total............................................................... $501,100
</TABLE>
Item 15. Indemnification of Directors and Officers
Ohio Revised Code, Section 1701.13(E), allows indemnification by Provident
Financial Group, Inc. to any person made or threatened to be made a party to
any proceedings, other than a proceeding by or in the right of Provident
Financial Group, Inc., by reason of the fact that he is or was a director,
officer, employee or agent of Provident Financial Group, Inc., against
expenses, including judgement and fines, if he acted in good faith and in a
manner reasonably believed to be or not opposed to the best interests of
Provident Financial Group, Inc. and, with respect to criminal actions, in which
he had no reasonable cause to believe that his conduct was unlawful. Similar
provisions apply to actions brought by or in the right of Provident Financial
Group, Inc., except that no indemnification shall be made in such cases when
the person shall have been adjudged to be liable for negligence or misconduct
to Provident Financial Group, Inc. unless deemed otherwise by the court.
Indemnification is to be made by a majority vote of a quorum of disinterested
directors or the written opinion of independent counsel or by the shareholders
of the court. Provident Financial Group, Inc.'s Code of Regulations extends
such indemnification.
The Declaration of each Trust also provides that Provident Financial Group,
Inc. shall indemnify the Property Trustee or any of its affiliates, the
Delaware Trustee or any of its affiliates, or any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee and the Delaware Trustee (each, a
"Fiduciary Indemnified Person") for, and hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties under such Declaration.
The Declaration of Trust of each Trust (the "Declaration") also provides
that Provident Financial Group, Inc. will indemnify, to the full extent
permitted by law, any Regular Trustee, affiliate of any Regular Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee or any affiliate thereof; or
any officer, employee or agent of such Trust or its affiliates (each, a
"Debenture Issuer Indemnified Person") who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such Trust) by reason of the fact that he
is or was a debenture Issuer Indemnified Person against expenses (including
attorney fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection
II-1
<PAGE>
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of such
Trust, and, regarding any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of such Trust, and, regarding any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. The Declaration also
provides that Provident Financial Group, Inc. shall indemnify, to the full
extent permitted by law, any Debenture Issuer Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a judgment
in its favor by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim, issue or matter as
to which such Debenture Issuer Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper. The Declaration further provides that expenses
(including attorneys' fees) incurred by a Debenture Issuer Indemnified Person
in defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in the immediately preceding two sentences shall be paid
by Provident Financial Group, Inc. in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Debenture Issuer Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by Provident
Financial Group, Inc. as authorized in the Declaration.
Any underwriting agreement or agency agreement with respect to an offering
of securities registered hereunder will provide for indemnification of
Provident Financial Group, Inc. and its officers and directors who signed this
registration statement by the underwriters or agents, as the case may be,
against certain liabilities including liabilities under the Securities Act of
1933.
II-2
<PAGE>
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
Exhibit 1 Form of Underwriting Agreement.
Exhibit 4(a) Form of Indenture relating to the Junior Subordinated Debentures
to be entered by and between Provident Financial Group, Inc. and
The Chase Manhattan Bank, as Indenture Trustee.
Exhibit 4(b) Form of Guarantee Agreement to be entered by and between
Provident Financial Group, Inc., as Guarantor, and The Chase
Manhattan Bank, as Guarantor Trustee, for the benefit of the
holders of Preferred Securities.
Exhibit 4(c) Form of Junior Subordinated Debenture (included in Article 2 of
Exhibit 4(a) hereto).
Exhibit 4(d) Certificate of Trust of Provident Capital Trust II.
Exhibit 4(e) Certificate of Trust of Provident Capital Trust III.
Exhibit 4(f) Declaration of Trust of Provident Capital Trust II.
Exhibit 4(g) Declaration of Trust of Provident Capital Trust III.
Exhibit 4(h) Form of Amended and Restated Declaration of Trust (included as
Annex B to Exhibit 4(a) hereto).
Exhibit 4(i) Form of Preferred Security Certificate (included as Exhibit A to
Exhibit 4(l) hereto).
Exhibit 5(a) Opinion of Richards, Layton & Finger, P.A. as to the validity of
the Preferred Securities of Provident Capital Trust II.
Exhibit 5(b) Opinion of Richards, Layton & Finger, P.A. as to the validity of
the Preferred Securities of Provident Capital Trust III.
Exhibit 5(c) Opinion of Simpson Thacher & Bartlett regarding the validity of
the Guarantee and the Junior Subordinated Debentures of each of
Provident Capital Trust II and Provident Capital Trust III.
Exhibit 8(a) Opinion of Simpson Thacher & Bartlett regarding certain tax
matters of Provident Financial Group, Inc. and Provident Capital
Trust II.
Exhibit 8(b) Opinion of Simpson Thacher & Bartlett regarding certain tax
matters of Provident Financial Group, Inc. and Provident Capital
Trust III.
Exhibit 12(a) Computation of Ratio of Earnings to Fixed Charges.
Exhibit 12(b) Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Dividends.
Exhibit 23(a) Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5(a) hereto).
Exhibit 23(b) Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5(b) hereto).
Exhibit 23(c) Consent of Simpson Thacher & Bartlett (included in Exhibit 5(c)
hereto).
Exhibit 23(d) Consent of Simpson Thacher & Bartlett (included in Exhibit 8(a)
hereto).
Exhibit 23(e) Consent of Simpson Thacher & Bartlett (included in Exhibit 8(b)
hereto).
Exhibit 23(f) Consent of Ernst & Young LLP
Exhibit 24(a) Powers of Attorney (included on page II-6 of this Registration
Statement).
Exhibit 25(a) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Junior Subordinated Debentures of Provident Financial Group,
Inc.
Exhibit 25(b) Form T-1 of The Chase Manhattan Bank, as trustee, with respect
to the Preferred Securities of Provident Capital Trust II.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
Exhibit 25(c) Form T-1 of The Chase Manhattan Bank, as trustee, with respect
to the Preferred Securities of Provident Capital Trust III.
Exhibit 25(d) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Guarantees of Provident Financial Group, Inc. with respect to
Provident Capital Trust II.
Exhibit 25(e) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Guarantees of Provident Financial Group, Inc. with respect to
Provident Capital Trust III.
</TABLE>
- --------------
Item 17. Undertakings
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more that a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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 thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of Provident's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act 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 thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a registrant of expenses incurred or
paid by a director, officer or controlling person of such registrant in 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 Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Provident
Financial Group, Inc. 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 Cincinnati, the State of Ohio, on June 8, 1999.
Provident Financial Group, Inc.
/s/ Robert L. Hoverson
By: ____________________________________
Name: Robert L. Hoverson
Title: President & Chief Executive
Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert L. Hoverson, Christopher J. Carey
and Mark E. Magee severally, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, and in any and all capacities, to sign this Registration
Statement and any and all amendments to this Registration Statement of the
Registrant, together with all schedules and exhibits thereto, and to file the
same with all scheduled exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, severally, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as each such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof, all on June 8, 1999.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on June 8, 1999.
Signature Title
/s/ Robert L. Hoverson
- -------------------------------------- President, Chief Executive
Robert L. Hoverson Officer (Chief Executive
Officer) and Director
/s/ Christopher J. Carey
- -------------------------------------- Executive Vice President and
Christopher J. Carey Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Philip R. Myers
- -------------------------------------- Executive Vice President and
Philip R. Myers Director
/s/ James M. Cook
- -------------------------------------- Director
James M. Cook
/s/ Thomas D. Grote
- -------------------------------------- Director
Thomas D. Grote, Jr.
/s/ Joseph A. Pedoto
- -------------------------------------- Director
Joseph A. Pedoto
/s/ Sidney A. Peerless
- -------------------------------------- Director
Sidney A. Peerless
/s/ Joseph A. Steger
- -------------------------------------- Director
Joseph A. Steger
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Provident
Capital Trust II and Provident Capital Trust III each certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and had duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Cincinnati, the State
of Ohio, on June 8, 1999.
Provident Capital Trust II
/s/ CHRISTOPHER J. CAREY
By: ____________________________________
Name: Christopher J. Carey
Title: Trustee
/s/ MARK E. MAGEE
By: ____________________________________
Name: Mark E. Magee
Title: Trustee
/s/ TAYFUN TUZUN
By: ____________________________________
Name: Tayfun Tuzun
Title: Trustee
Provident Capital Trust III
/s/ CHRISTOPHER J. CAREY
By: ____________________________________
Name: Christopher J. Carey
Title: Trustee
/s/ MARK E. MAGEE
By: ____________________________________
Name: Mark E. Magee
Title: Trustee
/s/ TAYFUN TUZUN
By: ____________________________________
Name: Tayfun Tuzun
Title: Trustee
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
Exhibit 1 Form of Underwriting Agreement.
Exhibit 4(a) Form of Indenture relating to the Junior Subordinated Debentures
to be entered by and between Provident Financial Group, Inc. and
The Chase Manhattan Bank, as Indenture Trustee.
Exhibit 4(b) Form of Guarantee Agreement to be entered by and between
Provident Financial Group, Inc., as Guarantor, and The Chase
Manhattan Bank, as Guarantor Trustee, for the benefit of the
holders of Preferred Securities.
Exhibit 4(c) Form of Junior Subordinated Debenture (included in Article 2 of
Exhibit 4(a) hereto).
Exhibit 4(d) Certificate of Trust of Provident Capital Trust II.
Exhibit 4(e) Certificate of Trust of Provident Capital Trust III.
Exhibit 4(f) Declaration of Trust of Provident Capital Trust II.
Exhibit 4(g) Declaration of Trust of Provident Capital Trust III.
Exhibit 4(h) Form of Amended and Restated Declaration of Trust (included as
Annex B to Exhibit 4(a) hereto).
Exhibit 4(i) Form of Preferred Security Certificate (included as Exhibit A to
Exhibit 4(l) hereto).
Exhibit 5(a) Opinion of Richards, Layton & Finger, P.A. as to the validity of
the Preferred Securities of Provident Capital Trust II.
Exhibit 5(b) Opinion of Richards, Layton & Finger, P.A. as to the validity of
the Preferred Securities of Provident Capital Trust III.
Exhibit 5(c) Opinion of Simpson Thacher & Bartlett regarding the validity of
the Guarantee and the Junior Subordinated Debentures of each of
Provident Capital Trust II and Provident Capital Trust III.
Exhibit 8(a) Opinion of Simpson Thacher & Bartlett regarding certain tax
matters of Provident Financial Group, Inc. and Provident Capital
Trust II.
Exhibit 8(b) Opinion of Simpson Thacher & Bartlett regarding certain tax
matters of Provident Financial Group, Inc. and Provident Capital
Trust III.
Exhibit 12(a) Computation of Ratio of Earnings to Fixed Charges.
Exhibit 12(b) Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Dividends.
Exhibit 23(a) Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5(a) hereto).
Exhibit 23(b) Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5(b) hereto).
Exhibit 23(c) Consent of Simpson Thacher & Bartlett (included in Exhibit 5(c)
hereto).
Exhibit 23(d) Consent of Simpson Thacher & Bartlett (included in Exhibit 8(a)
hereto).
Exhibit 23(e) Consent of Simpson Thacher & Bartlett (included in Exhibit 8(b)
hereto).
Exhibit 23(f) Consent of Ernst & Young LLP
Exhibit 24(a) Powers of Attorney (included on page II-6 of this Registration
Statement).
Exhibit 25(a) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Junior Subordinated Debentures of Provident Financial Group,
Inc.
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
Exhibit 25(b) Form T-1 of The Chase Manhattan Bank, as trustee, with respect
to the Preferred Securities of Provident Capital Trust II.
Exhibit 25(c) Form T-1 of The Chase Manhattan Bank, as trustee, with respect
to the Preferred Securities of Provident Capital Trust III.
Exhibit 25(d) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Guarantees of Provident Financial Group, Inc. with respect to
Provident Capital Trust II.
Exhibit 25(e) Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939, as amended ("Form T-1"), of The
Chase Manhattan Bank to act as trustee with respect to the
Guarantees of Provident Financial Group, Inc. with respect to
Provident Capital Trust III.
</TABLE>
II-10
<PAGE>
Exhibit 1
$___,___,___
PROVIDENT CAPITAL TRUST __
____ % Preferred Securities
as fully and unconditionally guaranteed by
PROVIDENT FINANCIAL GROUP, INC.
FORM OF
UNDERWRITING AGREEMENT
----------------------
____________, 1999 [Insert Date]
To the Underwriters named
in Schedule 1 hereto
Dear Sirs:
Provident Capital Trust __, a statutory business trust formed under
the Business Trust Act of the State of Delaware (the "Trust") and Provident
Financial Group, Inc., an Ohio corporation (the "Company"), propose to issue and
sell an aggregate of $___ million liquidation amount of ___% Preferred
Securities, liquidation amount $25 per Preferred Security (the "Preferred
Securities") of the Trust, guaranteed (the "Guarantee" and, together with the
Preferred Securities and the Junior Subordinated Debentures referred to below,
the "Securities") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into by and between the Company and The
Chase Manhattan Bank, as guarantee trustee (the "Guarantee Trustee"), the form
of which has been filed as an exhibit to the Registration Statement (as defined
below). The Company will be the owner of all of the undivided beneficial
ownership interests represented by the common securities (the "Common
Securities") of the Trust. Concurrently with the issuance of the Preferred
Securities and the Company's purchase of all of the Common Securities, the Trust
will invest the proceeds of each thereof in ___% Junior Subordinated Debentures
due 2029 (the "Junior Subordinated Debentures") issued by the Company. The
Junior Subordinated Debentures are to be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and The Chase Manhattan
Bank, as indenture trustee (the "Indenture Trustee"), the form of which has been
filed as an exhibit to the Registration Statement. This is to confirm the
agreement concerning the purchase of the Securities from the Trust and the
Company by the Underwriters named in Schedule 1 hereto (the "Underwriters").
This is also an acknowledgment that this Agreement applies only to the
Securities and to no other securities that may be offered or sold by the Company
or any of its statutory business trusts under the Registration Statement and by
means of the Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
<PAGE>
2
(a) A registration statement on Form S-3, and any amendments thereto,
with respect to the Securities have (i) been prepared by the Company and
the Trust in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission under
the Securities Act; and (iii) become effective under the Securities Act;
and the Indenture, the Declaration (as hereinafter defined) and the
Guarantee Agreement have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Copies of the registration
statement and any amendments to such registration statement have been
delivered by the Company and the Trust to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which the registration
statement was declared effective by the Commission; "Effective Date" means
the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company and the Trust with the consent of
the Representatives pursuant to Rule 424(a) of the Rules and Regulations;
the "Registration Statement" means such registration statement, as amended
at its Effective Time, including any documents incorporated by reference
therein at such time; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of such Preliminary Prospectus or the Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or were filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto) 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;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the Prospectus
in reliance upon and in conformity with written
<PAGE>
3
information furnished to the Company and the Trust through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein; the Indenture, the Declaration and the Guarantee
Agreement conform in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act, and the rules
and regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein, in light of the circumstances under which
they were made, or necessary to make the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section
15 hereof) have been duly incorporated and are validly existing as
corporations or as banking associations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification
other than where the failure to be so qualified and in good standing could
not reasonably be expected to have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole, and each has all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(e) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable (except as set forth in 12 U.S.C.
(S)55) and are owned directly or indirectly by the Company (except for
directors' qualifying shares, if any), free and clear of all liens,
encumbrances, equities or claims.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus; the Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Declaration of Trust dated as of
May 14, 1999 and, when executed, the
<PAGE>
4
Amended and Restated Declaration of Trust (the "Declaration") among the
Company, The Chase Manhattan Bank, as property trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, as Delaware trustee (the
"Delaware Trustee") and the individuals named therein as the regular
trustees (the "Regular Trustees," and together with the Property Trustee
and the Delaware Trustees, the "Trustees"), and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, and the
agreements and instruments contemplated by the Declaration 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 agreements and instruments contemplated by the Declaration and
described in the Prospectus; and the Trust is not a party or subject to any
action, suit or proceeding of any nature.
(g) The Declaration has been duly authorized by the Company and, when
duly executed and delivered by the Company, as Sponsor, and the Regular
Trustees, assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, will be a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance and transfer, reorganization, moratorium
and other similar laws relating to or affecting the rights of creditors
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing, and will conform in all material respects to the description
thereof contained in the Prospectus. Each of the Regular Trustees is an
employee of the Company, Provident Bank and/or Provident Bank of Florida
and has been duly authorized by the Company, Provident Bank and/or
Provident Bank of Florida to serve in such capacity and to execute and
deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully paid
and the Preferred Securities will be non-assessable; and the Preferred
Securities and the Common Securities, when issued and delivered, will
conform in all material respects to the description thereof contained in
the Prospectus.
(i) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company, assuming due execution and delivery by
the Indenture Trustee, and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; the Junior
Subordinated Debentures have been duly authorized and, when duly executed,
authenticated and delivered as provided in the Indenture, will be duly and
validly issued and outstanding and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights
<PAGE>
5
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing; and the Junior Subordinated Debentures, when issued and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Guarantee Agreement, when executed and delivered, will conform in all
material respects to the description thereof contained in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
(l) (i) The execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject and will not violate
or conflict with any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, any of
its subsidiaries or the Trust or any of their properties or assets, except
for such conflict, breach, violations or defaults as would not, either
individually or in the aggregate, have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole; nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries; and except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Declaration, the Guarantee
Agreement, the Indenture or the Junior Subordinated Debentures or the
consummation of the transactions contemplated herein and therein, including
the issuance of the Common Securities and the Preferred Securities by the
Trust and the purchase of the Junior Subordinated Debentures by the Trust
from the Company.
<PAGE>
6
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include any
other securities in the securities registered pursuant to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, 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, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; the pro forma financial information included in the
Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein; and
the information contained in the Prospectus that constitutes "forward-
looking statements" within the meaning of Section 21E(i)(1) of the Exchange
Act has been prepared on the basis of the Company's best current judgments
and estimations as to future operating plans and results.
(p) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(g) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(q) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the Company and
its subsidiaries taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
<PAGE>
7
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property
or assets is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business.
(u) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
(v) Except as set forth or contemplated in the Prospectus, since the
date as of which information is given in the Registration Statement through
the date hereof, and except as may otherwise be disclosed in the
Registration Statement, as amended or supplemented, neither the Company nor
the Trust has (i) issued or granted any securities, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or
(iv) in the case of the Company, declared or paid any dividend on its
capital stock.
(w) To the best of the Company's knowledge, there has been no
storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the properties now or previously owned or leased by the
Company or its subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes,
<PAGE>
8
hazardous wastes or hazardous substances due to or caused by the Company or
any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the business, financial
position or operating results of the Company and its subsidiaries; and the
terms "hazardous wastes," "toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(x) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) The deposit accounts of each of the Company's bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC") to
the fullest extent permitted by law and the rules and regulations of the
FDIC; and no proceedings for the termination of such insurance are pending
or threatened.
(z) The Company and each of its subsidiaries are in compliance in all
material respects, as required, with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the
FDIC, the Ohio Division of Financial Institutions and any other federal or
state bank regulatory authority with jurisdiction over the Company or any
of its subsidiaries (collectively, the "Bank Regulatory Authorities"),
other than where such failures to comply would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Neither the
Company nor any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
materially restricts the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting, or is considering the appropriateness
of issuing or requesting, any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
2. Purchase of the Preferred Securities by the Underwriters. (a)
The Trust and the Company hereby agree to sell to the several Underwriters, and
each Underwriter, upon the basis of the representations, warranties and
agreements herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Trust, the respective
liquidation amount of Preferred Securities set forth in Schedule 1 hereto
opposite their names at a purchase price of ____% of the liquidation amount
thereof.
(b) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on the Closing Date (as defined in Section 4
hereof) pay to the Representatives, for
<PAGE>
9
the accounts of the several Underwriters, a commission equal to __% of the
liquidation amount of the Preferred Securities to be delivered and purchased on
the Closing Date.
(c) The Company and the Trust shall not be obligated to deliver any
of the Securities to be delivered on the Closing Date, except upon payment for
all the Securities to be purchased on such Delivery Date as provided herein.
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Preferred Securities,
the several Underwriters propose to offer the Preferred Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment. (a) Delivery by the Trust of the
Preferred Securities to the Representatives for the respective accounts of the
several Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Company shall specify on
behalf of the Trust, shall take place at the office, on the date and at the time
specified in Schedule 1 hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Preferred
Securities being herein called the "Closing Date").
(b) The Preferred Securities will be in the form of one or more
global Preferred Securities registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be paid,
the commissions payable on the Closing Date to the Representatives for the
accounts of the Underwriters under Section 2 by wire transfer in federal (same
day) funds to such account as the Representatives shall specify.
5. Further Agreements of the Company and the Trust. The Company and
the Trust, jointly and severally, each agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Securities; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the
<PAGE>
10
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the Indenture,
the Declaration, the Guarantee Agreement and the computation of the
ratio of earnings to fixed charges), (ii) each Preliminary Prospectus,
the Prospectus (not later than 10:00 A.M., New York City time, on the
day following the execution and delivery of this Agreement) and any
amended or supplemented Prospectus (not later than 10:00 A.M., New
York City time, on the day following the date of such amendment or
supplement) and (iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the Effective Time of the
Registration Statement in connection with the offering or sale of the
Securities (or any other securities relating thereto) and if, at such
time, any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
<PAGE>
11
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the Company's common stock may
be listed or quoted pursuant to requirements of, or agreements with,
such exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in
the United States as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities; provided that in
connection therewith, neither the Trust nor the Company shall be
obligated to qualify as a foreign corporation or to file a general
consent to service of process;
(i) For a period of 30 days from the date of the Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by
any person at any time in the future of) any trust certificate or
other securities of the Trust other than the sale of the Common
Securities to the Company and the sale of the Preferred Securities to
the Underwriters, as contemplated by this Agreement and the
Prospectus, any securities that are substantially similar to the
Securities, or any securities that are convertible into, or
exchangeable or exercisable for, any of the foregoing, or (2) enter
into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of the Securities, whether any such transaction described in
clauses (1) and (2) of this paragraph is to be settled by delivery of
the Securities or other securities, in cash or otherwise, in each case
without the prior written consent of Lehman Brothers Inc., on behalf
of the Representatives;
<PAGE>
12
(j) Prior to the Effective Date, to apply for the listing of the
Preferred Securities on the New York Stock Exchange, Inc. and to use its
best efforts to complete that listing, subject only to official notice of
issuance and evidence of satisfactory distribution, prior to the Closing
Date;
(k) To apply the net proceeds from the sale of the Securities as set
forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that none of
the Company, any subsidiary of the Company or the Trust shall become an
"investment company" within the meaning of such term under the Investment
Company Act and the rules and regulations of the Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus and any amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits thereto), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of producing
and distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Securities; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) any fees charged by securities rating services for rating the Securities;
(h) the fees and expenses of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee; and (i) all other costs and expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement; provided that, except as provided in this Section 6 and in Section 11
hereof, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Preferred
Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on the
Closing Date, of the representations and warranties of the Company and the Trust
contained herein, to the performance by the Company and the Trust of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional
<PAGE>
13
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Simpson Thacher & Bartlett,
counsel for the Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Declaration, the Guarantee Agreement, the Securities, the Junior
Subordinated Debentures, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all material
respects to counsel for the Underwriters; and the Company and the Trust
shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Mark Magee, Esq. shall have furnished to the Representatives his
written opinion, as general counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory
to the Representatives, to the effect that:
(1) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations or banking
associations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification (other than
those jurisdictions in which the failure to so qualify would not have
a material adverse effect on the Company or the Company and its
subsidiaries taken as a whole), and have all power and authority
necessary to own or hold their respective properties and conduct the
businesses in which they are engaged.
(2) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and has been duly executed and
delivered by the Trust.
(3) The Indenture has been duly authorized, executed, and
delivered by the Company and, assuming due authorization, execution
and delivery thereof by the Indenture Trustee, constitutes a valid and
legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent
<PAGE>
14
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and implied covenant of good faith and fair dealing.
(4) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company, and, assuming due
authentification thereof by the Indenture Trustee and payment and
delivery as provided herein, constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(5) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Guarantee Trustee, constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(6) The Declaration has been duly authorized, executed and
delivered by the Company in its capacity as sponsor thereunder.
(7) The execution, delivery and performance of this Agreement,
the Declaration, the Indenture, the Junior Subordinated Debentures and
the Guarantee Agreement by the Company and the Trust, as applicable,
and the consummation of the transactions contemplated hereby and
thereby, will not constitute a material breach of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets, the effects of which breach,
violation or default would be material to the Company and its
subsidiaries taken as a whole.
<PAGE>
15
(8) All of the outstanding shares of capital stock of each
Significant Subsidiary (as such term is defined in Rule 12b-2 of the
Commission under the Exchange Act) have been duly authorized and
validly issued and are fully paid and non-assessable; except as
disclosed in the Prospectus, all such shares are owned by the Company
(except for any directors' qualifying shares) free and clear of any
pledge, lien, security interest, charge, claim, equitable right or
encumbrance of any kind.
(9) No consent, approval, authorization, order, registration or
qualification of or with any Federal or Ohio governmental agency or
body or, to such counsel's knowledge, any Federal or Ohio court is
required for the issue and sale by the Trust of the Preferred
Securities, the issuance by the Company of the Junior Subordinated
Debentures, the issuance and sale of the Guarantee by the Company and
the compliance by the Company and Trust with all of the provisions of
this Agreement, except for such consents approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(10) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statements by the
Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statements or
incorporated therein by reference as permitted by the Rules and
Regulations.
(11) To the best of such counsel's knowledge, no contracts,
agreements or understandings exist between the Company and any person
granting such person the right to require the Company to include such
Securities in the securities registered pursuant to the Registration
Statement.
(12) To the best of such counsel's knowledge, there is no pending
or threatened legal or governmental proceeding which is required to be
described in the Prospectus which is not described as required.
(13) The Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus.
(14) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment Company
Act.
(15) The Company is duly registered as a bank holding company
under the BHC Act; and the deposit accounts of the Company's bank
subsidiaries are insured by the FDIC to the fullest extent permitted
by law and the rules and regulations of the FDIC, and to the best
knowledge of such,
<PAGE>
16
counsel no proceedings for the termination of such insurance are
pending or threatened.
(16) The Company and each of its subsidiaries are in compliance
in all material respects with all laws administered by and regulations
of the Bank Regulatory Authorities, other than where such failures to
comply would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any Bank Regulatory Authority
which materially restricts the conduct of its business, or in any
manner relates to its capital adequacy, its credit policies or its
management, nor have any of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any
such board resolutions.
(17) No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission.
(18) The documents incorporated by reference in the Prospectus
and any further amendment or supplement to any such incorporated
document made by the Company or the Trust prior to the Closing Date
(other than the financial statements and related schedules contained
therein, as to which such counsel need express no opinion), complied
as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, when they became
effective or were filed with the Commission, as the case may be, and
the rules and regulations of the Commission thereunder.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America and the laws of the State of Ohio and that (i) as to matters
concerning the Trust given in such opinion, such counsel relied on special
Delaware counsel to the Company and the Trust, and (ii) as to matters
governed by New York law, such counsel has relied upon the opinion of
Simpson Thacher & Bartlett, counsel to the Underwriters, delivered pursuant
to Section 7(g). Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel
to the Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that
<PAGE>
17
(I) the Registration Statement, as of the Effective Date, 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
not misleading, or that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (II) any
documents incorporated by reference in the Prospectus, when they were filed
with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(e) Simpson Thacher & Bartlett shall have furnished to the
Company and the Representatives its written opinion, as special United
States federal income tax counsel to the Company and the Trust,
addressed to the Company and the Underwriters and dated the Closing
Date to the effect that:
(1) The Trust will be classified as a grantor trust for
United States federal income tax purposes and not as an
association taxable as a corporation; and
(2) Subject to the qualifications and limitations set
forth therein, the statements set forth in the Prospectus under
the caption "United States Federal Income Tax Consequences,"
insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries
of the matters described therein in all material respects.
(f) Richards, Layton & Finger, P.A. shall have furnished to the
Representatives its written opinion, as special Delaware counsel to
the Company and the Trust, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(1) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act; and all filings required under the laws of the State
of Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made; and under the
Declaration and the Delaware Business Trust Act, the Trust has
the trust power and authority to own property and to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under each of this Agreement, the
Preferred Securities and the Common Securities.
(2) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms, subject, as to enforcement, to the
<PAGE>
18
effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
transfer and other similar laws relating to 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.
(3) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver and to perform its obligations under, this
Agreement and (ii) to execute and deliver the Preferred
Securities and the Common Securities.
(4) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus,
will be validly issued and (subject to the qualifications set
forth in this paragraph) fully paid undivided beneficial
interests in the assets of the Trust (such counsel may note that
the holders of Common Securities will be subject to the
withholding provisions of Section 10.4 of the Declaration, will
be required to make payment or provide indemnity or security as
set forth in the Declaration and will be liable for the debts and
obligations of the Trust to the extent provided in Section 9.1 of
the Declaration); under the Delaware Business Trust Act and the
Declaration, the issuance and sale of the Common Securities is
not subject to preemptive or other similar rights.
(5) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered against payment of
the consideration as set forth in the Underwriting Agreement, the
Preferred Securities will be duly and validly issued and (subject
to the qualifications set forth in this paragraph) fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities will be entitled
to the benefits of the Declaration and, 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 (such counsel may note that the Holders of Preferred
Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration and will be required to make
payment or provide indemnity or security in connection with taxes
or governmental charges arising from transfers or exchanges of
certificates for Preferred Securities and the issuance of
replacement certificates for Preferred Securities, and to provide
security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and
powers under the Declaration, all as set forth in the
Declaration).
<PAGE>
19
(6) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust
of the Junior Subordinated Debentures, the execution, delivery
and performance by the Trust of this Agreement, the consummation
by the Trust of the transactions contemplated by this Agreement,
the compliance by the Trust with its obligations thereunder and
the performance by the Company, as sponsor, of its obligations
under the Declaration (A) do not violate (i) any of the
provisions of the Certificate of Trust or the Declaration or (ii)
any applicable Delaware law or administrative regulation and do
not require any consent, approval, license, authorization or
validation of, or filing or registration with, any Delaware
legislative, administrative or regulatory body under the laws or
administrative regulations of the State of Delaware (other that
as may be required under the securities or blue sky laws of the
state of Delaware, as to which such counsel need express no
opinion) and (B) do not require any consent, approval, license,
authorization or validation of, or filing or registration with,
any Delaware legislative, administrative or regulatory body under
the laws or administrative regulations of the State of Delaware
(except that such counsel need express no opinion with respect to
the securities laws of the State of Delaware).
(9) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than having a Delaware Trustee
as required by the Delaware Business Trust Act and the filing of
documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, the holders of the
Preferred Securities (other than those holders of Preferred
Securities who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust,
and the Trust will not be liable for any income tax imposed by
the State of Delaware.
(g) The Representatives shall have received from Simpson Thacher
& Bartlett, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such
<PAGE>
20
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter,
in form and substance satisfactory to the Representatives, addressed
to the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants= "comfort letters" to underwriters in
connection with registered public offerings.
(i) With respect to the letter of Ernst & Young LLP referred to
in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of such bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or an Executive Vice President and its chief financial
officer stating that:
(A) The representations, warranties and agreements of the
Company and the Trust in Section 1 hereof are true and correct as
of the Closing Date; the Company and the Trust have complied
with all their agreements contained herein and the conditions set
forth in paragraphs (a) and (k) of this Section 7 have been
fulfilled, and;
(B) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (i) the Registration
Statement, as of the Effective Date, and the Prospectus, as of
each of the Effective Dates, did not
<PAGE>
21
include any untrue statement of a material fact and did not 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, and (ii)
since the Effective Date, no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) (i) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
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,
otherwise than as set forth or contemplated in the Prospectus and (ii)
since such date there shall not have been any change in the capital
stock or long-term debt of the Company, Provident Bank or Provident
Bank of Florida or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii) of this paragraph, is,
in the reasonable judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations; and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or in the over-
the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended
or minimum prices shall have been established on the New York Stock
Exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States
<PAGE>
22
shall be such) as to make it, in the judgment of a majority in
interest of the several Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Securities on the
terms and in the manner contemplated in the Prospectus.
(n) The New York Stock Exchange shall have approved the
Preferred Securities for listing, subject only to official notice of
issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the
Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (B) in any blue sky application or
other document prepared or executed by the Company or the Trust (or
based upon any written information furnished by the Company or the
Trust) specifically for the purpose of qualifying any or all of the
Securities under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company and the Trust shall not
be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary
<PAGE>
23
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application in reliance upon
and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of
such Underwriter specifically for inclusion therein which information
consists solely of the information specified in Section 8(e) hereof. The
foregoing indemnity agreement is in addition to any liability which the
Company or the Trust may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Trust, their officers and employees, each
of their directors and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which
the Company or the Trust or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or
(B) in any Blue Sky Application or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company and the
Trust through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and the
Trust and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or the Trust or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may
otherwise have to the Company and the Trust or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 8. If any
<PAGE>
24
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the
right to employ counsel to represent jointly the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company
under this Section 8 if, in the reasonable judgement of the
Representatives, it is advisable for the Representatives and those
Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Company. Each indemnified party,
as a condition of the indemnity agreements contained in Sections 8(a) and
8(b), shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Trust on
the one hand and the Underwriters on the other from the offering of the
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
<PAGE>
25
but also the relative fault of the Company and the Trust on the one hand
and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Trust
on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities purchased under this Agreement
(before deducting expenses) received by the Company and the Trust, on the
one hand, and the total underwriting discounts and commissions received by
the Underwriters with respect to the shares of the Securities purchased
under this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Securities under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Trust or the Underwriters the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the Company shall be
deemed to be also for the benefit of the Trust and information supplied by
the Company shall also be deemed to have been supplied by the Trust. The
Company, the Trust and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
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 loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), 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 Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or become liable
to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided
in this Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company and the Trust
acknowledge that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page of and the
concession and reallowance figures and the information in the __________
[Insert Reference] textual
<PAGE>
26
paragraphs appearing under the caption "Underwriting" in the Prospectus
constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to purchase on the
Closing Date in the respective proportions which the aggregate liquidation
amount of Preferred Securities set opposite the name of each remaining non-
defaulting Underwriter in Schedule 1 hereto bears to the total aggregate
liquidation amount of Preferred Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Securities on the Closing Date if the total Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total Securities to be purchased on the Closing Date,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the Securities which it agreed to purchase on the Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company and the Trust, except that the Company and the Trust will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11 hereof. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases the Securities which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Representatives, the
Company or the Trust may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Trust prior to delivery of and payment for the Preferred Securities if,
prior to that time, any of the events described in Sections 7(k), 7(l) or 7(m)
shall have occurred or if the Underwriters shall decline to purchase the
Securities for any reason permitted under this Agreement.
<PAGE>
27
11. Reimbursement of Underwriters' Expenses. If (a) the Trust shall fail
to tender the Securities for delivery to the Underwriters for any reason or (b)
the Underwriters shall decline to purchase the Securities for any reason
permitted by this Agreement, the Company and the Trust shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company and the Trust
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Company nor the Trust shall be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ____________________________, Attention:
______________ (Fax: ___-___-____) with a copy, in the case of any notice
pursuant to Section 8(c), to ________________________;
(b) if to the Company or to the Trust, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: General Counsel (Fax: 513-
763-8069);
All notices to an Underwriter pursuant to Section 8(c) shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its acceptance telex to the Representatives, which
address will be supplied to any other party hereto by the Representatives
upon request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company and the Trust shall
be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Lehman Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Company and the
Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
<PAGE>
28
14. Survival. The respective indemnities, representations, and agreements
of the Company and the Trust and the Underwriters contained in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of page intentionally left blank; the signature page follows.]
<PAGE>
29
If the foregoing correctly sets forth the agreement among the Company and
the Trust and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By:________________________________
Name:
Title:
PROVIDENT CAPITAL TRUST __
By: Provident Financial Group, Inc., as
Sponsor
By:________________________________
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By:________________________________
By:________________________________
Authorized Representative
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
Liquidation
Amount of
Preferred
Underwriters Securities
------------ -----------
<S> <C>
LEHMAN BROTHERS INC............................... $
______________________________....................
______________________________....................
Total..................................... $
===========
</TABLE>
<PAGE>
Exhibit 4(a)
================================================================================
FORM OF
INDENTURE
Dated as of_______________, 1999
By and Between
PROVIDENT FINANCIAL GROUP, INC.
And
THE CHASE MANHATTAN BANK,
As Trustee
================================================================================
<PAGE>
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and this Indenture.
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- ---------
<S> <C>
(S) 310 (a)(1), (2) and (5)...................... 6.9
(a)(3)................................... Not Applicable
(a)(4)................................... Not Applicable
(b)...................................... 6.8
......................................... 6.10
(c)...................................... Not Applicable
(S) 311 (a)...................................... 6.13(a)
(b)...................................... 6.13(b)
(b)(2)................................... 7.3(a) (2)
......................................... 7.3(a) (2)
(S) 312 (a)...................................... 7.1
......................................... 7.2(a)
(b)...................................... 7.2(b)
(c)...................................... 7.2(c)
(S) 313 (a)...................................... 7.3(a)
(b)...................................... 7.3(b)
(c)...................................... 7.3(a), 7.3(b)
(d)...................................... 7.3(c)
(S) 314 (a)(1), (2) and (3)...................... 7.4
(a)(4)................................... 10.5
(b)...................................... Not Applicable
(c)(1)................................... 1.2
(c)(2)................................... 1.2
(c)(3)................................... Not Applicable
(d)...................................... Not Applicable
(e)...................................... 1.2
(f)...................................... Not Applicable
(S) 315 (a)...................................... 6.1(a)
(b)...................................... 6.2
......................................... 7.3(a) (6)
(c)...................................... 6.1(b)
(d)...................................... 6.1(c)
(d)(1)................................... 6.1(a) (1)
(d)(2)................................... 6.1(c) (2)
(d)(3)................................... 6.1(c) (3)
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- ---------
<S> <C>
(e)...................................... 5.14
(S) 316 (a)...................................... 1.1
(a)(1)(A)................................ 5.12
(a)(1)(B)................................ 5.13
(a)(2)................................... Not Applicable
(b)...................................... 5.8
(c)...................................... 1.4(f)
(S) 317 (a)(1)................................... 5.3
(a)(2)................................... 5.4
(b)...................................... 10.3
(S) 318 (a)...................................... 1.7
</TABLE>
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions...................................... 1
SECTION 1.2. Compliance Certificate and Opinions.............. 9
SECTION 1.3. Forms of Documents Delivered to Trustee.......... 10
SECTION 1.4. Acts of Holders.................................. 10
SECTION 1.5. Notices, Etc. to Trustee and Company............. 12
SECTION 1.6. Notice to Holders; Waiver........................ 13
SECTION 1.7. Conflict with Trust Indenture Act................ 13
SECTION 1.8. Effect of Headings and Table of Contents......... 13
SECTION 1.9. Successors and Assigns........................... 13
SECTION 1.10. Separability Clause............................. 13
SECTION 1.11. Benefits of Indenture........................... 14
SECTION 1.12. Governing Law................................... 14
SECTION 1.13. Non-Business Days............................... 14
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.................................. 14
SECTION 2.2. Form of Face of Security......................... 15
SECTION 2.3. Form of Reverse of Security...................... 18
SECTION 2.4. Additional Provisions Required in Global Security 21
SECTION 2.5. Form of Trustee's Certificate of Authentication.. 21
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.................................. 21
SECTION 3.2. Denominations.................................... 24
SECTION 3.3. Execution, Authentication, Delivery and Dating... 24
SECTION 3.4. Temporary Securities............................. 25
SECTION 3.5. Registration, Transfer and Exchange.............. 26
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities. 27
SECTION 3.7. Payment of Interest; Interest Rights Preserved... 28
SECTION 3.8. Persons Deemed Owners............................ 30
SECTION 3.9. Cancellation..................................... 30
SECTION 3.10. Computation of Interest......................... 30
SECTION 3.11. Deferrals of Interest Payment Dates............. 30
SECTION 3.12. Right of Set-Off................................ 31
SECTION 3.13. Agreed Tax Treatment............................ 32
SECTION 3.14. Shortening or Extension of Stated Maturity...... 32
SECTION 3.15. CUSIP Numbers................................... 32
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.......................... 33
SECTION 4.2. Application of Trust Money....................................... 34
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default................................................ 34
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment............... 35
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.. 36
SECTION 5.4. Trustee May File Proofs of Claim................................. 37
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities...... 38
SECTION 5.6. Application of Money Collected................................... 38
SECTION 5.7. Limitation on Suits.............................................. 39
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Capital Securities......... 39
SECTION 5.9. Restoration of Rights and Remedies............................... 40
SECTION 5.10. Rights and Remedies Cumulative................................... 40
SECTION 5.11. Delay or Omission Not Waiver..................................... 40
SECTION 5.12. Control by Holders............................................... 40
SECTION 5.13. Waiver of Past Defaults.......................................... 41
SECTION 5.14. Undertaking for Costs............................................ 41
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.......................... 42
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities............................. 42
SECTION 6.2. Notice of Defaults.............................................. 43
SECTION 6.3. Certain Rights of Trustee....................................... 43
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.......... 45
SECTION 6.5. May Hold Securities............................................. 45
SECTION 6.6. Money Held in Trust............................................. 45
SECTION 6.7. Compensation and Reimbursement.................................. 45
SECTION 6.8. Disqualification; Conflicting Interests......................... 46
SECTION 6.9. Corporate Trustee Required; Eligibility......................... 46
SECTION 6.10. Resignation and Removal; Appointment of Successor............... 47
SECTION 6.11. Acceptance of Appointment by Successor.......................... 48
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business..... 49
SECTION 6.13. Preferential Collection of Claims Against Company............... 49
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.14. Appointment of Authenticating Agent..................... 49
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders 51
SECTION 7.2. Preservation of Information, Communications to Holders... 51
SECTION 7.3. Reports by Trustee....................................... 52
SECTION 7.4. Reports by Company....................................... 52
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms..... 53
SECTION 8.2. Successor Corporation Substituted........................ 53
SECTION 8.3. Opinion of Counsel to be Given to the Trustee............ 54
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders....... 54
SECTION 9.2. Supplemental Indentures with Consent of Holders.......... 55
SECTION 9.3. Execution of Supplemental Indentures..................... 57
SECTION 9.4. Effect of Supplemental Indentures........................ 57
SECTION 9.5. Conformity with Trust Indenture Act...................... 57
SECTION 9.6. Reference in Securities to Supplemental Indentures....... 57
SECTION 9.7. Notice of Supplemental Indentures........................ 57
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest............... 58
SECTION 10.2. Maintenance of Office or Agency.......................... 58
SECTION 10.3. Money for Security Payments to be Held in Trust.......... 58
SECTION 10.4. Statement as to Compliance............................... 60
SECTION 10.5. Waiver of Certain Covenants.............................. 60
SECTION 10.6. Payment of Trust Costs and Expenses...................... 60
SECTION 10.7. Additional Covenants..................................... 61
SECTION 10.8. Calculation of Original Issue Discount................... 61
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article............................ 62
SECTION 11.2. Election to Redeem; Notice to Trustee.................... 62
SECTION 11.3. Selection of Securities to be Redeemed................... 62
SECTION 11.4. Notice of Redemption..................................... 63
SECTION 11.5. Deposit of Redemption Price.............................. 63
SECTION 11.6. Payment of Securities Called for Redemption.............. 64
</TABLE>
v
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SECTION 11.7. Right of Redemption of Securities Initially Issued to a Trust.... 64
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article......................................... 65
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities............ 65
SECTION 12.3. Redemption of Securities for Sinking Fund........................ 65
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt............................ 67
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc................... 67
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Securities..... 68
SECTION 13.4. No Payment When Senior Debt in Default........................... 69
SECTION 13.5. Payment Permitted If No Default.................................. 70
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.................. 70
SECTION 13.7. Provisions Solely to Define Relative Rights...................... 70
SECTION 13.8. Trustee to Effectuate Subordination.............................. 71
SECTION 13.9. No Waiver of Subordination Provisions............................ 71
SECTION 13.10. Notice to Trustee................................................ 71
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent... 72
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt................. 72
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights................................................. 72
SECTION 13.14. Article Applicable to Paying Agents.............................. 73
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.................. 73
SECTION 13.16. Trust Moneys Not Subordinated.................................... 73
</TABLE>
ANNEXES
Annex A Form of Declaration of Trust
Annex B Form of Amended and Restated Declaration of Trust
vi
<PAGE>
INDENTURE
This INDENTURE, dated as of ____________, 1999, is entered into by
and between PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation (hereinafter
called the "Company") having its principal office at One East Fourth Street,
Cincinnati, Ohio 45202, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in one or more series (the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more Delaware statutory business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred interests in such
Trusts (the "Capital Securities") and common interests in such Trusts (the
"Common Securities" and, collectively with the Capital Securities, the "Trust
Securities"), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done;
NOW THEREFORE, THIS INDENTURE WITNESSETH: for and in consideration of the
premises and the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
<PAGE>
2
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning assigned to it
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security from the applicable
Interest Payment Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, no Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"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, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a Trust, the principal office of the Property Trustee
under the related Trust Agreement, is closed for business.
"Capital Securities" has the meaning specified in the first recital of this
Indenture.
<PAGE>
3
"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" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $____ per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date hereof is located at 250 West Huron Road, Suite 220, Cleveland, Ohio
44113, Attention: Corporate Trust Department.
"corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning assigned to it in Section 3.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions" means, with respect to the Trust Securities issued by a
Trust, amounts payable in respect of such Trust Securities as provided in the
related Trust Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private debts.
"Event of Default," unless otherwise specified in the supplemental
indenture creating a series of Securities has the meaning assigned to it in
Section 5.1.
<PAGE>
4
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning assigned to it in Section 1.4(f).
"Extension Period" has the meaning assigned to it in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee" means, with respect to the Trust Securities issued by a Trust,
the guarantee by the Company of Distributions on such Trust Securities to the
extent provided in the Guarantee Agreement.
"Guarantee Agreement" means, with respect to the Trust Securities issued by
a Trust, the Guarantee Agreement substantially in the form attached hereto as
Annex C, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means, with respect to a Trust, the receipt by
the Trust of an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" that is required to be registered
under the Investment Company Act, which
<PAGE>
5
Change in 1940 Act Law becomes effective on or after the date of issuance of the
Capital Securities of such Trust.
"Junior Subordinated Payment" has the meaning assigned to it in Section
13.2.
"Maturity" means, when used with respect to any Security, the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption price money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been
<PAGE>
6
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor. Upon
the written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.1, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of (or premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on the
Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Proceeding" has the meaning assigned to it in Section 13.2.
"Property Trustee" means, in respect of any Trust, the commercial bank or
trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Trust under such
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor property trustee appointed as therein
provided.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Regulatory Capital Event" means the receipt by the Trust of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of the Federal Reserve or (b) any
<PAGE>
7
official administrative pronouncement or judicial decision for interpreting or
applying such laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Capital Securities, the Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute Tier I capital (or its then
equivalent); provided, however, that the distribution of the Securities in
connection with the liquidation of the Trust by the Debenture Issuer shall not
in and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event or an Investment Company
Event.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
"Regular Trustee" means, in respect of any Trust, each Person identified as
an "Regular Trustee" in the related Trust Agreement, solely in such Person's
capacity as Regular Trustee of such Trust under such Trust Agreement and not in
such Person's individual capacity, or any successor Regular Trustee appointed as
therein provided.
"Responsible Officer" means, when used with respect to the Trustee, (i) any
officer of the Trustee with direct responsibility for the administration of this
Indenture and (ii), with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject.
"Rights Plan" means a plan of the Company providing for the issuance by the
Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw
Hill Companies, Inc.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior 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, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other
<PAGE>
8
similar instruments of such Person, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services, (v) every capital lease obligation of
such Person, (vi) every obligation of such Person for claims (as defined in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended) in
respect of derivative products such as interest and foreign exchange rate
contracts, commodity contracts, options and swaps and similar arrangements and
(vii) every obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise; provided that "Senior Debt" shall not
include (a) any obligations which, by their terms, are expressly stated to rank
pari passu in right of payment with, or to not be superior in right of payment
to, the Securities, (b) any obligations of the Company which when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the Company, (c)
any obligations of the Company to any of its subsidiaries, (d) obligations of
the Company to any employee or (e) any obligations in respect of debt securities
issued to any trust, or a trustee of such trust, partnership or other entity
affiliated with the Company that is a financing entity of the Company in
connection with the issuance by such financing entity of securities that are
similar to the Capital Securities, or (f) trade accounts payable or accrued
liabilities arising in the ordinary course of business.
"Special Record Date" means, for the payment of any Defaulted Interest, a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified pursuant to
the terms of such Security as the date on which the principal of such Security
or such installment of interest is due and payable, in the case of such
principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Trust of an opinion of independent tax
counsel experienced in such matters, to the effect that, as a result of (a) any
amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement, action or judicial decision interpreting or applying such laws or
regulations, which such amendment or change becomes effective or proposed
change, pronouncement, action or decision is announced on or after the Closing
Date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by
<PAGE>
8
the Debenture Issuer on the Debentures is not, or within 90 days of the date of
such opinion, will not be, deductible by the Debenture Issuer, in whole or in
part, by the Debenture Issuer for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust" has the meaning specified in the first recital of this Indenture.
"Trust Agreement" means, with respect to a Trust, a Declaration of Trust
substantially in the form attached hereto as Annex A, as amended by the form of
Amended and Restated Declaration of Trust substantially in the form attached
hereto as Annex B, or substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series, in
each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. (S)
77aaa-77bbb), as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President" means, when used with respect to the Company or the
Trustee, any duly appointed vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) shall include:
<PAGE>
10
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
or caused to be made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the possession of the
Company, unless such counsel rendering such Opinion of Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed by such Holder in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
<PAGE>
11
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The Securities Register shall be conclusive proof of the ownership of
Securities by a Holder.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of the relevant Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
<PAGE>
12
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of the relevant Securities in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.2, (iii) any request to institute proceedings referred to in
Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each case
with respect to the relevant Securities. If any record date is set pursuant to
this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
relevant Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the relevant Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
<PAGE>
13
(1) the Trustee by any Holder, any holder of Capital Securities or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office or such other office or agency designated by the Trustee pursuant hereto,
or
(2) the Company by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
<PAGE>
14
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11,5.13, 9.1 and 9.2, the
holders of Capital Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Securities may be
listed or traded or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 with respect to the authentication and delivery of
such Securities.
<PAGE>
15
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.2. Form of Face of Security.
PROVIDENT FINANCIAL GROUP, INC.
__% JUNIOR SUBORDINATED DEBENTURES DUE 2029
No. ____________________ CUSIP ___________
$_______________________
PROVIDENT FINANCIAL GROUP, INC., a corporation organized and existing under
the laws of the State of Ohio (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _________ Dollars on __________ __, ____[;
provided that the Company may, subject to certain conditions set forth in
Section 3.14 of the Indenture, (i) shorten the Stated Maturity of the principal
of this Security to a date not earlier than __________, and (ii) extend the
Stated Maturity of the principal of this Security at any time on one or more
occasions, but in no event to a date later than __________]. The Company further
promises to pay interest on said principal sum from _____________, _________ or
from the most recent interest payment date (each such date, an "Interest Payment
Date") on which interest has been paid or duly provided for, [monthly]
[quarterly] [semi-annually] [if applicable, insert - (subject to deferral as set
forth herein)] in arrears on [insert applicable Interest Payment Dates] of each
year, commencing ____________, _______________, at the rate of ___% per annum,
until the principal hereof shall have become due and payable, [if applicable,
insert - plus Additional Interest, if any,] until the principal hereof is paid
or duly provided for or made available for payment [if applicable, insert - 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 rate of ____% per annum, compounded [monthly] [quarterly]
[semi-annually]. The amount of interest payable for any period shall be computed
on the basis of twelve 30-day months and a 360-day year. The amount of interest
payable 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. In the event that any
date on which interest is payable on this Security is not a Business Day, then a
payment of the 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 the date the payment was
<PAGE>
16
originally payable. A "Business Day" shall mean any day other than (i) a
Saturday or Sunday, (ii) a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee or the principal
office of the Property Trustee under the Trust Agreement hereinafter referred to
for PROVIDENT CAPITAL TRUST __, is closed for business. 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 Security (or one or more Predecessor Securities is registered at the close
of business on the Regular Record Date for such interest installment, which
shall be the ________________ [insert definition of Regular Record Dates]. Any
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or self-regulatory organization, all as more fully provided in
said Indenture.
[If applicable, insert - 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 this Security to defer payment of interest on this Security,
at any time or from time to time, for up to twenty consecutive [monthly]
[quarterly] [semi-annual] interest payment periods with respect to each deferral
period (each an "Extension Period"), during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security; provided,
further, that during any such Extension Period, the Company shall not, and shall
not permit any Subsidiary of the Company to, (i) declare or pay any dividends or
distributions on or redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Company's capital stock or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company that ranks pari passu with or junior in
interest to this Security or (iii) 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 with or junior in interest to this
Security (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under the Guarantee with respect to this
Security, 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, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan, or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period. Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed
<PAGE>
17
twenty consecutive [months] [quarters] [semi-annual] periods or extend beyond
the Stated Maturity of the principal of this Security. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral [if applicable, insert - or, with respect to
the Securities issued to a Trust, so long as such Securities are held by such
Trust, prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities would be payable but for such deferral
or (ii) the date the Administrative Trustees are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date]].
Payment of principal of (and premium, if any) and interest on this Security
will be made at the office or agency of the Company maintained for that purpose
in the United States, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts [if applicable, insert -; provided, however, that at the option of the
Company payment of interest may be made (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated in writing at least 15 days before the
relevant Interest Payment Date by the Person entitled thereto as specified in
the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
18
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Provident Financial Group, Inc.
By:__________________________________________
[President or Executive Vice President]
Attest:
_______________________________________
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _______ __, 1999 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$_____________].
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Declaration of Trust, dated as of _______ __, ____, as
amended (the "Trust Agreement"), for PROVIDENT CAPITAL TRUST , among
Provident Financial Group, Inc., as Depositor, and the Trustees named therein,
shall have the meanings assigned to them in the Indenture or the Trust
Agreement, as the case may be.
[If applicable, insert - The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable, insert
- -including Additional Interest, if any] to the Redemption Date.]
[If applicable, insert - Upon the occurrence and during the continuation of
a Tax Event, Investment Company Event or a Regulatory Capital Event in respect
of a Trust, the Company may, at its option, at any time within 90 days of the
occurrence of such Tax Event, Investment Company Event or Regulatory Capital
Event redeem this Security, in whole but not in part, subject to the provisions
of Section 11.7 and the other provisions of Article XI of the Indenture, at a
redemption
<PAGE>
19
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, including Additional Interest, if any, to the Redemption Date.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of all series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, -As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a Trust, if upon an Event of Default, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series fails
to declare the principal of all the Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.]
[If the Security is a Discount Security, -As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities
<PAGE>
20
of this series issued to a Trust, if upon an Event of Default, the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series fails to declare the principal of all the Securities
of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee. Such
amount shall be equal to - insert formula for determining the amount. Upon any
such declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this series shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $_________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
<PAGE>
21
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:__________________________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
following matters shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall distinguish the
Securities of the series from all other Securities;
<PAGE>
22
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(g) the obligation or the right, if any, of the Company to redeem, repay or
purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $__ and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
<PAGE>
23
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the
Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such series
into any other securities or property of the Company, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series
to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
<PAGE>
24
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Debt as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $__ and any integral multiple
thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President
or one of its Vice Presidents under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make such Securities available for delivery. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon conclusively, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company
<PAGE>
25
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the Security of such
series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for can
cellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall not be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
<PAGE>
26
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and make available for delivery, in the name
of the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
<PAGE>
27
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so
registered to act as depositary, in either case unless the Company has
approved a successor Depositary within 90 days, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security, (C) the Company in its sole discretion determines that such
Global Security will be so exchangeable or transferable or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, register the transfer of or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of selection for redemption of Securities pursuant to
Article XI and ending at the close of business on the day of mailing of notice
of redemption or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any Security
to be redeemed in part, any portion thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such mutilated Security, and bearing a number not contemporaneously outstanding.
<PAGE>
28
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities. At the option of
the Company, interest on any series of Securities may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Securities Register of such series or (ii) by wire transfer in immediately
available funds at such place and to such account as designated by the Person
entitled thereto as specified in the Securities Register of such series.
<PAGE>
29
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities of the series in respect
of which interest is in default may be listed or traded and, upon such notice as
may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall
<PAGE>
30
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. Upon written request,
all canceled Securities shall be returned by the Trustee to the Company and
destroyed by the Company.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any period shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series 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.
SECTION 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period, the Company
shall pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law) to the Persons in whose
names that Securities are registered at the close of business on the Regular
Record Date with respect to the Interest Payment Date at the end of such
Extension Period; provided, however, that no Extension Period shall exceed the
period or periods specified in such securities or extend beyond the Stated
Maturity of the principal of the Securities
<PAGE>
31
of such series; provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Company that ranks pari passu with
or junior in interest to the Securities of such series or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company that by their terms rank pari passu
with or junior in interest to the securities of such series (other than (a)
dividends or distributions in the Company's capital stock, (b) any declaration
of a dividend in connection with the implementation of a Rights Plan, or the
redemption or repurchase of any rights distributed pursuant to a Rights Plan,
(c) payments under the Guarantee with respect to such Security, 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, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that was entered into prior to the commencement of
such Extension Period). Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, provided that no
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of the principal of such Securities. Upon
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Holders of the
Securities of such series and the Trustee written notice of its election to
begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities of such series
would be payable but for such deferral or, with respect to the Securities of a
series issued to a Trust, so long as such Securities are held by such Trust,
prior to the earlier of (i) the next succeeding date on which Distributions on
the Capital Securities of such Trust would be payable but for such deferral or
(ii) the date the Administrative Trustees of such Trust are required to give
notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Capital Securities of the record date or the
date such Distributions are payable, but in any event not less than one Business
Day prior to such record date.
The Trustee shall promptly give notice, in the name and at the expense of
the Company, of the Company's election to begin any such Extension Period to
the Holders of the Outstanding Securities of such series.
SECTION 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a Trust,
notwithstanding anything to the contrary in this Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee relating to such Security or under Section 5.8 of
this Indenture.
<PAGE>
32
SECTION 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
SECTION 3.14. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the Original Issue Date of the Securities of such series;
provided that, if the Company elects to exercise its right to extend the Stated
Maturity of the principal of the Securities of such series pursuant to clause
(ii), above, at the time such election is made and at the time of extension (A)
the Company is not in bankruptcy, otherwise insolvent or in liquidation, (B) the
Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities held by a Trust, such
Trust is not in arrears on payments of Distributions on the Capital Securities
issued by such Trust and no deferred Distributions are accumulated and (D) such
Securities are rated not less than BBB- by S&P or Baa3 by Moody's or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Series A Subordinated Debentures, it shall give written notice to the Trustee,
and the Trustee shall give notice of such shortening or extension to the
Holders, no less than 30 and no more than 60 days prior to the effectiveness
thereof. The Company's right to shorten the Stated Maturity of the principal of
the Securities of such series pursuant to clause (i) above is subject to the
Company having received (A) prior approval of the Federal Reserve if required
under applicable capital guidelines or policies and (B) an opinion of nationally
recognized independent counsel experienced in such matters to the effect that
after the shortening of maturity, interest paid on the Junior Subordinated
Debentures will be deductible by Provident for United States federal income tax
purposes; the holders of Capital Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of the shortening
of maturity, and will be taxed under United States federal income tax law in the
same amount, in the manner and at the same times as would have been the case if
the shortening of maturity had not occurred; and the shortening of maturity will
not cause the Trust to be classified as other than a grantor trust for United
States federal income tax purposes.
SECTION 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and
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any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the CUSIP
numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which the
Securities of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any Interest Payment Date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Company in this Indenture with respect to that
series (other than a covenant or warranty a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or
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(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to a Trust, if, upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal amount (or,
if the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee; and upon any such declaration such principal amount (or
specified portion thereof) of and the accrued interest (including any Additional
Interest) on all the Securities of such series shall become immediately due and
payable. Payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII notwithstanding that such amount shall become immediately due and payable
as herein provided. If an Event of Default specified in Section 5.1(4) or 5.1(5)
with respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if the Securities of
that series are Discount Securities, such portion of the principal
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36
amount of such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13;
provided that, in the case of Securities of a series held by a Trust, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fails to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of the related series of
Capital Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
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(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities of
any series shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal (and
premium, if any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of that series are Discount Securities, such portion
of the principal amount as may be due and payable pursuant to a declaration
in accordance with Section 5.2) (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may be necessary
or advisable and to take any and all actions as are authorized under the
Trust Indenture Act in order to have the claims of the Holders and any
predecessor to the Trustee under Section 6.7 allowed in any such judicial
proceedings; and
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(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due and
unpaid upon such series of Securities for principal (and premium, if any),
interest (including any Additional Interest), in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
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THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of security or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of the
corresponding series of Capital Securities held by such Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (premium, if any) and (subject to Section
3.7) interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
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Trust Agreement under which such Trust is formed) of such Capital Securities of
the corresponding series held by such Holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of Capital
Securities, then and in every such case the Company, the Trustee, the Holders
and such holder of Capital Securities shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Holders and the holders of Capital Securities shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Capital Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders and the right and remedy given to the holders of Capital Securities
by Section 5.8 may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee, the Holders or the holders of Capital Securities, as
the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
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(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
Subject to Sections 5.2 and 9.2, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series and, in the case of
any Securities of a series issued to a Trust, the holders of a majority in
Liquidation Amount (as defined in the relevant Trust Agreement) of Capital
Securities issued by such Trust may waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless all
Events of Default with respect to Securities of that series, other than the non-
payment of the principal of Securities of that series which has become due
solely by such acceleration, have been cured or annulled as provided in Section
5.3 and the Company has paid or deposited with the Trustee a sum sufficient to
pay all overdue installments of interest (including any Additional Interest) on
all Securities of that series, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Securities, and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Trust, by all holders of Capital Securities issued by
such Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted
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by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security on or after the respective
Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
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(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of Holders pursuant to Section 5.12 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, 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 of such series, 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 of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
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(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(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; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) the Trustee shall not be charged with knowledge of any default or Event
of Default with respect to the Securities unless either (i) a Responsible
Officer assigned to the Corporate Trust Department of the Trustee (or any
successor division or department of the Trustee) shall have actual knowledge of
such default or Event of Default or (ii) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or by any Holder
of the Securities.
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SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the resignation or removal of the Trustee and the
termination of this Agreement.
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46
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee. Such lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) 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.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the United
States of America or of any state or territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
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. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
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47
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after such removal, the Trustee
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
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48
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) 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 retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any
<PAGE>
49
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring 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 Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) 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.
SECTION 6.12. 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation 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. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated
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50
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any state or territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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 a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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51
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
THE CHASE MANHATTAN BANK,
As Trustee
By:__________________________________________
As Authenticating Agent
By:__________________________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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52
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this Indenture deliver
to Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series held by a Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged
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54
from all obligations and covenants under the Indenture and the Securities and
may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the written order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
SECTION 8.3. Opinion of Counsel to be Given to the Trustee.
The Trustee shall be entitled to receive and, subject to Sections 6.1 and
6.2, shall be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article
Eight.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form reasonably satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
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55
(4) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a Trust
and for so long as any of the corresponding series of Capital Securities issued
by such Trust shall remain outstanding, the holders of such Capital Securities;
or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of
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56
interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or reduce any premium
payable upon the redemption thereof, or reduce the amount of principal of a
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change the
place of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect to
the subordination of Outstanding Securities of any series in a manner adverse to
the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a
Trust, so long as any of the corresponding series of Capital Securities issued
by such Trust remains outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Trust Agreement under which
such Trust is organized) of such Capital Securities then outstanding unless and
until the principal (and premium, if any) of the Securities of such series and
all accrued and, subject to Section 3.7, unpaid interest (including any
Additional Interest) thereon have been paid in full and (ii) no amendment shall
be made to Section 5.8 of this Indenture that would impair the rights of the
holders of Capital Securities provided therein without the prior consent of the
holders of each Capital Security then outstanding unless and until the principal
(and premium, if any) of the Securities of such series and all accrued and
(subject to Section 3.7) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Capital Securities, or
which modifies the rights of the Holders of Securities or holders of Capital
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities or holders of Capital Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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57
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be provided, and (subject to
Section 6.1) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture, and that all conditions
precedent have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 9.7. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit by mail to all Holders of any series of the securities affected
thereby, as their name and addresses appear in the Securities Register, a notice
setting forth in general terms the substance of each supplemental indenture.
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ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including Additional Interest) on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time, on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming
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59
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal and premium (if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its failure so
to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on Securities in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest (including Additional Interest);
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date
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60
of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company, covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with respect to
the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
SECTION 10.6. Payment of Trust Costs and Expenses.
Since each Trust is being formed solely to facilitate an investment in the
Securities, the Company, in its capacity as the issuer of the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
Capital Securities and Common Securities) and all costs and expenses of each
Trust (including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and all costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Trust by the United States, or any other
taxing authority, so that the net amounts received and retained by the Trust and
the Property Trustee after paying any such debts, obligations, costs, expenses,
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
debts, obligations, costs, expenses, taxes, duties, assessments or other
governmental charges been incurred by or imposed on the Trust. The obligations
of the Company to pay all debts, obligations, costs, expenses, taxes, duties,
assessments or other governmental charges of each Trust (other than with respect
to the Capital Securities and Common Securities) shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture.
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SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions on, or redeem purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Securities of
such series or (iii) make any guarantee payments with respect to any guarantee
by the Company of debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Securities (other
than (a) dividends or distributions in the Company's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights Plan
or the redemption or repurchase of any rights distributed pursuant to a Rights
Plan, (c) payments under the Guarantee with respect to the Securities of such
Series, 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, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan, or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period) if at such time (x) there shall have
occurred any event of which the Company has actual knowledge that (A) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default with respect to the Securities of such series and (B) in respect of
which the Company shall not have taken reasonable steps to cure, (y) if the
Securities of such series are held by a Trust, the Company shall be in default
with respect to its payment of any obligations under the Guarantee relating to
the Capital Securities issued by such Trust or (z) the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities of such series as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly 100% ownership of the Common
Securities of such Trust; provided, however, that any permitted successor of the
Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate such Trust,
except (a) in connection with a distribution of the Securities of such series to
the holders of the Trust Securities of such Trust in liquidation of such Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.
SECTION 10.8. Calculation of Original Issue Discount.
The Company shall file with the Trustee within __ days of the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year, if any.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $__ or, in the case of the
Securities of a series issued to a Trust, $__, or integral multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities, the Company shall, not less than 45 nor more than
60 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the Securities will be
redeemed on a pro rata basis, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.
If less than all the Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
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SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall identify the Securities to be redeemed (including CUSIP number,
if a CUSIP number has been assigned to such Securities of such Series) and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time, on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
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SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price. On presentation and surrender
of such Securities at a Place of Payment in said notice specified, the said
securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder thereof, at the expense of the Company, a new Security or Securities
of the same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms. If a Global Security is so
surrendered, such new Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to a
Trust.
In the case of the Securities of a series initially issued to a Trust,
except as otherwise established pursuant to Section 3.1 for the Securities of a
Series, the Company, at its option, may redeem such Securities (i) on or after
the date years after the Original Issue Date of such Securities, in
whole at any time or in part from time to time, or (ii) upon the occurrence and
during the continuation of a Tax Event, an Investment Company Event or a
Regulatory Capital Event, at any time within 90 days following the occurrence of
such Tax Event, an Investment Company Event or Regulatory Capital Event in
respect of such Trust, in whole (but not in part), in each case at a Redemption
Price equal to 100% of the principal amount thereof; provided that the Company's
right to redeem such Securities pursuant to clause (i) or (ii) above is subject
to the Company having received the prior approval of the Federal Reserve if
required under applicable capital guidelines or policies of the Federal Reserve.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any sinking fund payment in excess of such minimum amount which is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 30 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the
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case of the failure of the Company to deliver such Officers' Certificate (or, as
required by this Indenture, the Securities and coupons, if any, specified in
such Officers' Certificate), the sinking fund payment due on the succeeding
sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Securities of such
series subject to a mandatory sinking fund payment without the right to deliver
or credit securities as provided in Section 12.2 and without the right to make
the optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Securities if cash sufficient
for that purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this Article XII.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur
<PAGE>
67
and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Debt.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders of Senior Debt shall
be entitled to receive payment in full of all amounts due or to become due on
such Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
any series of the Securities) subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any Subsidiary
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding; provided, however, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the extent
that such holders would be required by the subordination provisions of such
Senior Debt to pay such amounts over to the obligees on trade accounts payable
or other liabilities arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of
<PAGE>
68
any kind or character, whether in cash, property or securities, including any
Junior Subordinated Payment, before all amounts due or to become due on all
Senior Debt are paid in full or payment thereof is provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
and if such fact shall, at or prior to the time of such payment or distribution,
have been made known to the Trustee or, as the case may be, such Holder, then
and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all amounts due or to
become due on all Senior Debt remaining unpaid, to the extent necessary to pay
all amounts due or to become due on all Senior Debt in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Debt;
provided, however, that holders of Senior Debt shall not be entitled to receive
payment of any such amounts to the extent that such holders would be required by
the subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the ordinary
course of the Company's business.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in 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 which securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially the same extent as
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.1 for the Securities of any
series by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration; provided, however, that holders of Senior Debt
shall not
<PAGE>
69
be entitled to receive payment of any such amounts to the extent that such
holders would be required by the subordination provisions of such Senior Debt to
pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
SECTION 13.4. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such event or
default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of (or premium, if any) or
interest (including any Additional Interest), if any, on the Securities or on
account of the purchase or other acquisition of Securities by the Company or any
Subsidiary, in each case unless and until all amounts due or to become due on
such Senior Debt are paid in full; provided, however, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with this Indenture or as otherwise specified as contemplated by Section 3.1 for
the Securities of any series by delivering and crediting pursuant to Section
12.2 or as otherwise specified as contemplated by Section 3.1 for the Securities
of any series Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment or event of default; provided, however, that
holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Company's business.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
<PAGE>
70
SECTION 13.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 13.2 or under the conditions
described in Sections 13.3 and 13.4, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 13.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
<PAGE>
71
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 13.10. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any monies may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply
<PAGE>
72
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it within two Business
Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely conclusively on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Senior Debt, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Debt shall be
read into this Indenture against the Trustee.
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
<PAGE>
73
SECTION 13.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
SECTION 13.16. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money held in trust under Article IV by the Trustee for the payment of principal
of, premium, if any, and interest on the Securities shall not be subordinated to
the prior payment of any Senior Debt of the Company or subject to the
restrictions set forth in this Article XIII and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.
[The remainder of this page left blank intentionally; The signature page
follows.]
<PAGE>
74
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
Provident Financial Group, Inc.,
By:__________________________________________
Name:
Title:
The Chase Manhattan Bank,
as Trustee
By:__________________________________________
Name:
Title:
<PAGE>
Annex A
FORM OF
DECLARATION OF TRUST
OF
PROVIDENT CAPITAL TRUST __
This DECLARATION OF TRUST, dated as of May __, 1999, is entered by
and among PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as Sponsor,
CHASE MANHATTAN BANK DELAWARE, as the initial Delaware Trustee, THE CHASE
MANHATTAN BANK, as the initial Property Trustee, and CHRISTOPHER J. CAREY, MARK
E. MAGEE and TAYFUN TUZUN, as Regular Trustees (collectively with the Delaware
Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Provident Capital Trust __", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. 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. (S) 3801 et seq. (the "Business Trust Act"), and that
--- - -- ---
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, 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 preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees 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 and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a 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 possibly certain other securities and (b) 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) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE>
2
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 negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement, (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys 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 Sponsor, on
behalf of the Trust, may deem necessary or desirable and (v) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) Chase Manhattan Bank Delaware and
The Chase Manhattan Bank, in their capacities as Trustees of the Trust, shall
not be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchanges or state securities or blue sky laws, and in such case only to the
extent so required. In connection with all of the foregoing, each Regular
Trustee, solely in such Regular Trustee's capacity as Trustee of the Trust,
hereby constitutes and appoints Robert L. Hoverson, Christopher J. Carey and
Mark E. Magee and each of them, as such Regular Trustee's true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for such Regular Trustee, in such Regular Trustee's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchanges and administrators
of state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) 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 Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
<PAGE>
3
7. Chase Manhattan Bank Delaware, in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of (S) 3807(a) of
the Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of
the Preferred Securities at the election of the Sponsor.
9. This Declaration shall be governed by and construed in accordance
with the laws of the State of Delaware.
[The rest of this page has been left blank intentionally; the signature page
follows.]
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
By: ___________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: ___________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________
Name:
Title:
_______________________________
CHRISTOPHER J. CAREY, as Regular Trustee
_______________________________
MARK E. MAGEE, as Regular Trustee
_______________________________
TAYFUN TUZUN, as Regular Trustee
<PAGE>
Annex B
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of __________ __, 1999
By and Among
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
CHRISTOPHER J. CAREY,
as Regular Trustee
MARK E. MAGEE,
as Regular Trustee
TAYFUN TUZUN,
as Regular Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee
And
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
================================================================================
<PAGE>
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
- ---------------- ----------
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310(a)......................................................... 6.3
310(b)......................................................... 6.3(c); 6.3(d)
310(c)......................................................... Inapplicable
311(a)......................................................... 2.2(b)
311(b)......................................................... 2.2(b)
311(c)......................................................... Inapplicable
312(a)......................................................... 2.2(a)
312(b)......................................................... 2.2(b)
312(c)......................................................... Inapplicable
313(a)......................................................... 2.3
313(b)......................................................... 2.3
313(c)......................................................... 2.3
313(d)......................................................... 2.3
314(a)......................................................... 2.4
314(b)......................................................... Inapplicable
314(c)......................................................... 2.5
314(d)......................................................... Inapplicable
314(e)......................................................... 2.5
314(f)......................................................... Inapplicable
315(a)......................................................... 3.9(b); 3.10(a)
315(b)......................................................... 2.7(a)
315(c)......................................................... 3.9(a)
315(d)......................................................... 3.9(b)
316(a)......................................................... 2.6; 7.5(b); 7.6(c)
316(b)......................................................... Inapplicable
316(c)......................................................... Inapplicable
317(a)......................................................... 3.16
317(b)......................................................... Inapplicable
318(a)......................................................... 2.1(c)
</TABLE>
______________
* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
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ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions..................................... 2
Affiliate............................................................. 2
Authorized Officer.................................................... 2
Beneficial Owners..................................................... 2
Business Day.......................................................... 2
Business Trust Act.................................................... 3
Certificate........................................................... 3
Certificate of Trust.................................................. 3
Closing Date.......................................................... 3
Code.................................................................. 3
Commission............................................................ 3
Common Securities Holder.............................................. 3
Common Security....................................................... 3
Common Security Certificate........................................... 3
Corporate Trust Office................................................ 3
Covered Person........................................................ 3
Debenture Issuer...................................................... 4
Debenture Issuer Indemnified Person................................... 4
Debenture Trustee..................................................... 4
Debentures............................................................ 4
Delaware Trustee...................................................... 4
Depositary............................................................ 4
Depositary Participant................................................ 4
Direct Action......................................................... 4
Distribution.......................................................... 4
Exchange Act.......................................................... 4
Fiduciary Indemnified Person.......................................... 4
Fiscal Year........................................................... 4
Global Security....................................................... 4
Guarantee............................................................. 4
Holder................................................................ 5
Indemnified Person.................................................... 5
Indenture............................................................. 5
Indenture Event of Default............................................ 5
Investment Company.................................................... 5
Investment Company Act................................................ 5
Investment Company Event.............................................. 5
Legal Action.......................................................... 5
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List of Holders....................................................... 5
Majority in Liquidation Amount........................................ 5
New York Stock Exchange............................................... 6
Officers' Certificate................................................. 6
Paying Agent.......................................................... 6
Payment Amount........................................................ 6
Preferred Security.................................................... 6
Preferred Security Certificate........................................ 6
Person................................................................ 6
Property Account...................................................... 6
Property Trustee...................................................... 7
Pro Rata.............................................................. 7
Quorum................................................................ 7
Redemption/Distribution Notice........................................ 7
Redemption Price...................................................... 7
Regular Trustee....................................................... 7
Regulatory Capital Event.............................................. 7
Related Party......................................................... 7
Responsible Officer................................................... 7
Securities............................................................ 8
Securities Act........................................................ 8
Special Event......................................................... 8
Sponsor............................................................... 8
Successor Delaware Trustee............................................ 8
Successor Entity...................................................... 8
Successor Property Trustee............................................ 8
Successor Security.................................................... 8
Super Majority........................................................ 8
Tax Event............................................................. 8
10% in Liquidation Amount............................................. 8
Treasury Regulations.................................................. 9
Trust Enforcement Event............................................... 9
Trust Indenture Act................................................... 9
Trustee............................................................... 9
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................... 9
SECTION 2.2 Lists of Holders of Securities..................................... 10
SECTION 2.3 Reports by the Property Trustee.................................... 10
SECTION 2.4 Periodic Reports to the Property Trustee........................... 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent................... 10
SECTION 2.6 Trust Enforcement Events; Waiver................................... 11
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SECTION 2.7 Trust Enforcement Event; Notice.................................... 12
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.............................................. 13
SECTION 3.2 Office............................................................. 13
SECTION 3.3 Purpose............................................................ 13
SECTION 3.4 Authority.......................................................... 14
SECTION 3.5 Title to Property of the Trust..................................... 14
SECTION 3.6 Powers and Duties of the Regular Trustees.......................... 15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees............... 17
SECTION 3.8 Powers and Duties of the Property Trustee.......................... 19
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee........ 21
SECTION 3.10 Certain Rights of Property Trustee................................. 23
SECTION 3.11 Delaware Trustee................................................... 26
SECTION 3.12 Execution of Documents............................................. 26
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities............. 27
SECTION 3.14 Duration of Trust.................................................. 27
SECTION 3.15 Mergers............................................................ 27
SECTION 3.16 Property Trustee May File Proofs of Claim.......................... 29
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.................................... 30
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.............. 30
SECTION 4.3 Compensation of the Trustees....................................... 31
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities................... 31
SECTION 5.2 Covenants of the Common Securities Holder.......................... 31
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees................................................. 32
SECTION 6.2 Delaware Trustee; Eligibility...................................... 32
SECTION 6.3 Property Trustee; Eligibility...................................... 32
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally.. 33
SECTION 6.5 Initial Regular Trustees........................................... 33
SECTION 6.6 Appointment, Removal and Resignation of Trustees................... 34
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SECTION 6.7 Vacancies among Trustees........................................... 35
SECTION 6.8 Effect of Vacancies................................................ 35
SECTION 6.9 Meetings........................................................... 36
SECTION 6.10 Delegation of Power................................................ 36
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business........ 36
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities............................ 37
SECTION 7.2 Distributions...................................................... 39
SECTION 7.3 Redemption of Securities........................................... 40
SECTION 7.4 Redemption Procedures.............................................. 41
SECTION 7.5 Voting Rights of Preferred Securities.............................. 42
SECTION 7.6 Voting Rights of Common Securities................................. 44
SECTION 7.7 Paying Agent....................................................... 46
SECTION 7.8 Listing............................................................ 46
SECTION 7.9 Transfer of Securities............................................. 46
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.................. 48
SECTION 7.11 Deemed Security Holders............................................ 48
SECTION 7.12 Global Securities.................................................. 48
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust............................... 51
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust............. 52
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.......................................................... 53
SECTION 9.2 Exculpation........................................................ 53
SECTION 9.3 Fiduciary Duty..................................................... 54
SECTION 9.4 Indemnification.................................................... 55
SECTION 9.5 Outside Businesses................................................. 58
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year........................................................ 58
SECTION 10.2 Certain Accounting Matters......................................... 59
SECTION 10.3 Banking............................................................ 59
SECTION 10.4 Withholding........................................................ 60
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ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments......................................................... 60
SECTION 11.2 Meetings of the Holders of Securities; Action by Written Consent... 63
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee............ 64
SECTION 12.2 Representations and Warranties of the Delaware Trustee............ 65
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices........................................................... 66
SECTION 13.2 Governing Law..................................................... 67
SECTION 13.3 Intention of the Parties.......................................... 67
SECTION 13.4 Headings.......................................................... 67
SECTION 13.5 Successors and Assigns............................................ 67
SECTION 13.6 Partial Enforceability............................................ 68
SECTION 13.7 Counterparts...................................................... 68
EXHIBITS
Exhibit A Form of Preferred Security Certificate
Exhibit B Form of Common Security Certificate
</TABLE>
v
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration"), dated
as of _________ __, 1999, is entered into by and among PROVIDENT FINANCIAL
GROUP, INC., an Ohio corporation, as sponsor (the "Sponsor"), CHRISTOPHER J.
CAREY, MARK E. MAGEE and TAYFUN TUZUN, as the initial regular trustees
(collectively, the "Regular Trustees"), THE CHASE MANHATTAN BANK, a New York
banking corporation, as the initial property trustee (the "Property Trustee")
and CHASE MANHATTAN BANK DELAWARE, a Delaware corporation, as the initial
Delaware trustee (the "Delaware Trustee" and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), not in their individual capacities
but solely as Trustees, and the holders, from time to time, of undivided
beneficial ownership interests in the Trust to be issued pursuant to this
Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor established Provident Capital Trust
__ (the "Trust"), a business trust under the Business Trust Act (as defined,
together with other capitalized terms, herein) pursuant to a Declaration of
Trust dated as of May 14, 1999 (the "Original Declaration"), and a Certificate
of Trust (the "Certificate of Trust") filed with the Secretary of State of the
State of Delaware on May 14, 1999;
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial ownership interests in the assets
of the Trust, to invest the proceeds from such sales in the Debentures issued by
the Debenture Issuer and to engage in only those activities necessary or
incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate each
and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders of the Securities representing undivided
beneficial ownership interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
<PAGE>
2
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Recitals and
Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this
Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in the
Trust Indenture Act has the same meaning when used in this Declaration; and
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable.
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Beneficial Owners" means, for Preferred Securities represented by a Global
Security, the Person who acquires an interest in the Preferred Securities which
is reflected on the records of the Depositary through the Depositary
Participants.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the Borough of Manhattan, The City of New
York are authorized or required by law or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee, or, with respect
to the Securities of a series initially issued to a Trust, the principal office
of the Property Trustee under the related Trust Agreement, is closed for
business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Certificate of Trust" has the meaning specified in the Recitals hereto.
<PAGE>
3
"Closing Date" means the date on which the Preferred Securities are issued
and sold.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission or any successor
thereto.
"Common Securities Holder" means Provident Financial Group, Inc., or any
successor thereto, in its capacity as purchaser and holder of all of the Common
Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security, substantially in the form of
Exhibit B hereto.
"Corporate Trust Office" means the principal office of the Property Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Declaration is
located at 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attention:
Corporate Trust Department.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder.
"Debenture Issuer" means Provident Financial Group, Inc., or any successor
thereto under the Indenture, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Issuer Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee
or any Affiliate thereof; or (d) any officer, employee or agent of the Trust or
its Affiliates.
"Debenture Trustee" means The Chase Manhattan Bank, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Debentures" means the series of debentures to be issued by the Debenture
Issuer under the Indenture and held by the Property Trustee.
"Delaware Trustee" has the meaning specified in Section 6.2.
<PAGE>
4
"Depositary" means, with respect to Securities issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities.
"Depositary Participant" means a member of, or participant in, the
Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Preferred Security
Certificate.
"Guarantee" means the Guarantee Agreement, dated as of ________ __, 1999,
of the Sponsor in respect of the Securities.
"Holder" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that in determining whether the Holders
of the requisite liquidation amount of Preferred Securities have voted on any
matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Securities and if the
Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of _____ __, 1999, between the
Debenture Issuer and The Chase Manhattan Bank, as Trustee, pursuant to which the
Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term "Event of
Default" in the Indenture.
<PAGE>
5
"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an opinion of
a nationally recognized independent counsel, to the effect that, as a result of
the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after the
Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"New York Stock Exchange" means the New York Stock Exchange, Inc. or any
successor thereto.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such
<PAGE>
6
Person 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 acting
on behalf of such Person, such condition or covenant has been complied with;
provided, that the term "Officers' Certificate", when used with reference to
Regular Trustees who are natural persons shall mean a certificate signed by two
or more of the Regular Trustees which otherwise satisfies the foregoing
requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Certificate" means a definitive certificate in fully
registered form representing a Preferred Security, substantially in the form of
Exhibit A.
"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.
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in Section
7.4(a) hereto.
"Redemption Price" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust
plus an amount equal to accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
<PAGE>
7
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Regulatory Capital Event" means the receipt by the Trust of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of the Federal Reserve or (b) any
official administrative pronouncement or judicial decision for interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof will not constitute, Tier 1
capital (or its then equivalent); provided, however, that the distribution of
the Securities in connection with the liquidation of the Trust by the Debenture
Issuer shall not in and of itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event or an
Investment Company Event.
"Related Party" means, with respect to the Sponsor, any direct or wholly
owned subsidiary of the Sponsor or any Person that owns, directly or indirectly,
100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer with direct responsibility for the administration of this Declaration
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"Sponsor" means Provident Financial Group, Inc., an Ohio corporation, or
any successor entity in a merger, consolidation, amalgamation or replacement by
or conveyance, transfer or lease of its properties substantially as an entirety,
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section 6.6(b).
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section 6.6(b).
"Successor Security" has the meaning specified in Section 3.15(b)(i)b.
<PAGE>
8
"Super Majority" has the meaning specified in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of independent tax
counsel experienced in such matters, to the effect that, as a result of (a) any
amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement, action or judicial decision interpreting or applying such laws or
regulations, which amendment or change becomes effective or proposed change,
pronouncement, action or decision is announced on or after the Closing Date,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Debenture Issuer on the Debentures is not, or within 90
days of the date of such opinion will not be, deductible, in whole or in part,
by the Debenture Issuer for United States federal income tax purposes, or (iii)
the Trust is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue as a trustee in accordance
with the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
<PAGE>
9
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration 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.
(c) If and to the extent that any provision of this Declaration conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i), except while the Preferred Securities
are represented by one or more Global Securities, at least five Business Days
prior to the date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of the record date relating to
the payment of such Distributions, and (ii) at any other time, within 30 days of
receipt by the Trust of a written request from the Property Trustee for a List
of Holders, as of a date no more than 15 days before such List of Holders is
given to the Property Trustee; provided that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall 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 Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
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10
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities), the Property
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 Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular 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 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act,
but in no event later than 120 days after the end of each calendar year.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement Event
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater than a
majority in principal amount of the Debentures (a "Super
Majority") to be waived under the Indenture, the related Trust
Enforcement Event under the Declaration may only be waived by the
vote or written consent of the Holders of at least the proportion
in liquidation amount of the Preferred Securities that the
relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act
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11
is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Trust Enforcement Event with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Declaration and the Preferred Securities, but no such waiver
shall extend to any subsequent or other Trust Enforcement Event with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of a Trust Enforcement Event with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Trust Enforcement Event with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Trust
Enforcement Event under the Declaration as provided below in this
Section 2.6(b), the Trust Enforcement Event under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived
under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Trust Enforcement Event
under the Declaration as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Declaration may only be
waived by the vote or written consent of the Holders of at least
the proportion in liquidation amount of the Common Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every
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12
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities constitutes a waiver of
the corresponding Trust Enforcement Event with respect to the Preferred
Securities under this Declaration. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event actually known to a Responsible Officer of the Property
Trustee, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all such defaults with respect to the Securities, unless
such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be protected
fully in withholding such notice if and so long as a Responsible Officer of the
Property Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of this Declaration shall
have actual knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Provident Capital Trust __" as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities, the Property Trustee and the Delaware
Trustee. The Trust's activities may be conducted under the name of the Trust or
any other name deemed advisable by the Regular Trustees.
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13
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Provident Financial
Group, Inc., One East Fourth Street, Cincinnati, Ohio 45202. On 10 Business
Days' written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the gross proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or Common Securities or the Preferred
Securities Beneficial Owners will take any position for United States federal
income tax purposes which is contrary to the classification of the Trust as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive
authority to carry out the purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute the act of and serve
to bind the Trust and an action taken by the Property Trustee on behalf of the
Trust in accordance with its powers shall constitute the act of and serve to
bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Declaration.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the registration statements referred
to in Section 3.6(b)(i), including any amendments thereto, shall be signed by or
on behalf of a majority of the Regular Trustees; and
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14
(c) a Regular 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 purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Account or as otherwise provided in this Declaration, legal title to
all assets of the Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall have an undivided
beneficial ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred Securities and the
Common Securities in the manner specified in Section 7.1 and issue and sell the
Preferred Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
(i) execute and file an application, prepared by the Sponsor, to the
New York Stock Exchange or any other national stock exchange or
automated quotation system for listing of any Preferred
Securities, the Guarantee and the Debentures;
(ii) execute and file with the Commission one or more registration
statements on the applicable forms prepared by the Sponsor,
including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Debentures;
(iii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary, in order
to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Preferred Securities for sale; and
<PAGE>
15
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements providing
for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of this Declaration and the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
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16
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) 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 and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the purposes and functions of the Trust as set out in Section 3.3
or the activities of the Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for United
States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust;
and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Debenture Issuer.
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17
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the Property
Trustee) shall cause the Trust to, engage in any activity other than as required
or authorized by this Declaration. In particular, the Trust shall not and none
of the Trustees (including the Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders
of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets;
(vi) possess any power or otherwise act in such a way as to vary the
terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration or by the terms
of the Securities);
(vii) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration or by the terms of
the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the principal of
all the Debentures shall be due and payable, or (D) consent to
any amendment, modification or termination of the Indenture or
the Debentures where such consent shall be required unless the
Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an
insubstantial risk that the Trust will be deemed an Investment
Company required to be registered under the Investment Company
Act, or the Trust will not be classified as a grantor trust for
United States federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust as a
grantor trust for United States federal income tax purposes; or
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(x) revoke any action previously authorized or approved by vote of
the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee for the benefit of the Trust and the Holders
of the Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the
Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property
Trustee, deposit such funds into the Property Account and make
payments to the Holders of the Preferred Securities and Holders
of the Common Securities from the Property Account in accordance
with Section 7.2. Funds in the Property Account shall be held
uninvested until disbursed in accordance with this Declaration.
The Property Account shall be an account that is maintained with
a banking institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical
rating organization", within the meaning of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities
and the Common Securities to the extent the Debentures are
redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as so directed and as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of a
Special Event.
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(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises out of
or in connection with a Trust Enforcement Event of which a Responsible Officer
of the Property Trustee has actual knowledge or the Property Trustee's duties
and obligations under this Declaration or the Trust Indenture Act; provided,
however, that if a Trust Enforcement Event has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to pay
interest, principal or other required payments on the Debentures on the date
such interest, principal or other required payments are otherwise payable (or in
the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding against the Debenture Issuer for
enforcement of payment to such Holder of the principal of or interest on
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. Notwithstanding anything to the
contrary in this Declaration or the Indenture, the Debenture Issuer shall have
the right to set-off any payment it is otherwise required to make under the
Indenture in respect of any Preferred Security to the extent the Debenture
Issuer has heretofore made, or is currently on the date of such payment making,
a payment under the Guarantee relating to such Preferred Security or under
Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee occurs and is continuing, the Property Trustee shall, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to the terms of such
Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
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(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust Enforcement
Event and after the curing of all Trust Enforcement Events that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and after
the curing or waiving of all such Trust Enforcement Events
that may have occurred:
a. the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations
as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
b. in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming
to the requirements of this Declaration; but in the case of
any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a
duty
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21
to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without negligence,
in good faith in accordance with the direction of the Holders
of not less than a Majority in Liquidation Amount of the
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 Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if
it 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 Declaration or indemnity
reasonably satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and
the Property Account shall be to deal with such property in a
similar manner as the 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 Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to
the Property Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
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(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Property Trustee be liable for any default or misconduct of
the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, 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
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) 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 rerecording, refiling or
registration thereof;
(v) the Property Trustee may consult with counsel of its choice or
other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the
scope of such experts' area of expertise 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 Sponsor 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
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23
concerning the administration of this Declaration from any
court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder
shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Property Trustee's agents,
nominees or custodians) and liabilities that might be incurred
by it in complying with such request or direction, including
such reasonable advances as may be requested by the Property
Trustee; provided that, nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon
the occurrence of a Trust Enforcement Event, of its obligation
to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and
the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its
agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as
to the authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration 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
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24
the Holders of the Securities which instructions may only be
given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the
Property Trustee under the terms of the 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 conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Declaration;
(xii) the Property Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it without negligence, in
good faith and reasonably believed by it to be authorized or
within the discretion, rights or powers conferred upon it by
this Declaration;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property
Trustee incurs expenses or renders services in connection with
a bankruptcy, such expenses (including the fees and expenses
of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally;
(xiv) the Property Trustee shall not be charged with knowledge of a
Trust Enforcement Event unless a Responsible Officer of the
Property Trustee obtains actual knowledge of such event or the
Property Trustee receives written notice of such event from
Holders holding more than a Majority in Liquidation Amount of
the Preferred Securities; and
(xv) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of such
Securities, and the signature of the Property Trustee or one
of its agents shall by itself be sufficient and effective to
perform any such action and no third party shall be required
to inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its
agent's taking such action.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property 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
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25
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.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
6.2, 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
Regular Trustees or the Property Trustee described in this Declaration. Except
as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807(a) of
the Business Trust Act. In the event the Delaware Trustee shall at any time be
required to take any action or perform any duty hereunder with respect to the
Trust, the Delaware Trustee shall be entitled to all of the same rights as the
Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the consent of
the Regular Trustees or, if there are more than two, a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee,
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26
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
a. expressly assumes all of the obligations of the Trust with
respect to the 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 Debenture Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as
the Property Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange
or with any other or organization on which the Preferred
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(v) 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;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has
received an opinion of independent counsel to the Trust
experienced in such matters to the effect that:
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27
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;
b. following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the
Trust nor the Successor Entity will be required to register
as an Investment Company; and
c. following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United
States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of
the common securities and guarantees the obligations of such
Successor Entity under the Successor Securities at least to
the extent provided by the Securities Guarantee; and
(ix) such Successor Entity expressly assumes all of the obligations
of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
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28
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Debentures;
(b) to determine 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 the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
<PAGE>
29
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the NASDAQ Stock Market
for listing upon notice of issuance of any Preferred Securities, the Guarantee
and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the Trust an
underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify the
Property Trustee and the Delaware Trustee for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder; the
provisions of this Section 4.2, 4.3 shall survive the resignation or removal of
the Delaware Trustee or the Property Trustee or the termination of this
Declaration.
SECTION 4.3 Compensation of the Trustees.
The Sponsor agrees to pay the Property Trustee and the Delaware Trustee
from time to time such compensation for all services rendered by the Property
Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in
writing by the Sponsor and the Property Trustee or the Delaware Trustee, as the
case may be, and, except as otherwise expressly provided herein, to reimburse
the Property Trustee and the Delaware Trustee upon its or their request for all
reasonable expenses, disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance with the
provisions of this Declaration, except any such expense, disbursement or advance
as may be attributable to its or their negligence or bad faith.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date, the Debenture Issuer will purchase all of the Common
Securities issued by the Trust on the Closing Date, for an amount at least equal
to 3% of the capital of the Trust at such time, at the same time as Preferred
Securities are sold.
The aggregate stated liquidation amount of Common Securities outstanding at
any time shall not be less than 3% of the capital of the Trust.
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30
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain directly 100% ownership of the
Common Securities, (ii) to cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Declaration, (iii) to use its commercially reasonable efforts
to ensure that the Trust will not be an investment company for purposes of the
Investment Company Act, and (iv) to take no action which would be reasonably
likely to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (2) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) 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 law,
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31
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
other Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
owners, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes
of this Section 6.3(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 Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in
this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
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32
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware 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
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
Christopher J. Carey, Mark E. Magee and Tayfun Tuzun, the business
address of all of whom is c/o Provident Financial Group, Inc., One East Fourth
Street, Cincinnati, Ohio 45202.
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of
the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, by vote of the
Holders of a majority in Liquidation Amount of the
Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or
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33
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
a. until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument
executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning
Property Trustee; or
b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment
by instrument executed by such Successor Delaware Trustee
and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee,
as the case may be, shall have been appointed and accepted appointment as
provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular
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34
Trustees or, if there are more than two, a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 6.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as
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35
the Regular Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware Trustee
or any Regular Trustee that is not a natural person may be merged or converted
or with such Trustee may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation 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.
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class
of preferred securities representing undivided beneficial ownership interests in
the assets of the Trust and one class of common securities representing
undivided beneficial ownership interests in the assets of the Trust.
(i) Preferred Securities. The Preferred Securities of the Trust
have an aggregate liquidation amount with respect to the
assets of the Trust of _____________ dollars ($_________ )
with respect to the closing of the sale of Preferred
Securities. The Preferred Securities are hereby designated
for identification purposes only as "___% Preferred
Securities" (the "Preferred Securities"). The Preferred
Security Certificates evidencing the Preferred Securities
shall be substantially in the form of Exhibit A to this
Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock
exchange on which the Preferred Securities are listed or
quoted.
(ii) Common Securities. The Common Securities of the Trust have
an aggregate liquidation amount with respect to the assets
of the Trust of ______________ dollars ($____________) with
respect to the closing of the sale of Common Securities. The
Common Securities are hereby designated for identification
purposes only as "____% Common Securities" (the "Common
Securities" and, together with the Preferred Securities, the
"Securities"). The Common Security Certificates evidencing
the Common Securities shall be
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substantially in the form of Exhibit B to this Declaration,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice.
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue. The aggregate number of Preferred Securities
outstanding at any time shall not exceed the liquidation amount set forth in
Section 7.1(a)(i).
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The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the Property Trustee
to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable undivided beneficial ownership interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or similar
rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative
cash Distributions at the rate per annum of % of the stated liquidation amount
of $25 per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30-day month and for periods of less
than a month, the actual number of days elapsed per 30-day month. Subject to
Section 7.1(b), Distributions shall be made on the Preferred Securities and the
Common Securities on a Pro Rata basis. Distributions on the Securities shall,
from the date of original issue, accumulate and be cumulative and shall be
payable quarterly, in arrears, on each March 31, June 30, September 30 and
December 31, commencing _________ __, ____, when, as and if available for
payment, by the Property Trustee, except as otherwise described below.
Distributions are payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent that the Trust
has funds available for the payment of such Distributions in the Property
Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound quarterly at the rate of ____% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the
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38
extent funds are available for that purpose, make a Pro Rata distribution of the
Payment Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Debentures. The relevant record dates
for the Common Securities shall be the same as for the Preferred Securities. If
the Preferred Securities shall not continue to remain represented by one or more
Global Securities, the relevant record dates for the Preferred Securities shall
be selected by the Regular Trustees and shall be at least one Business Day prior
to the relevant payment dates. At all times, the Distribution payment dates
shall correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution 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, with the same force and effect as if made on such payment date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed
at the Redemption Price. Holders shall be given not less than 30 nor more than
60 days notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, such Securities until such certificates are
presented to the Sponsor or its agent for transfer or reissuance.
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39
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a) above, if Securities are to be redeemed, then (i) with
respect to Preferred Securities represented by one or more Global Securities, by
12:00 noon, New York City time, on the redemption date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities and (ii) with respect to Securities not
represented by one or more Global Securities, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Paying Agent will pay the
relevant Redemption Price to the Holders of such Securities by check mailed to
the address of the relevant Holder appearing on the register of the Trust on the
redemption date. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
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 fixed for redemption. If payment of the Redemption Price in respect
of any Securities is improperly withheld or refused
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40
and not paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the Guarantee, Distributions on such Securities will continue to
accrue at the then applicable rate from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
For these purposes, the applicable Redemption Price shall not include
Distributions which are being paid to Holders who were Holders on a relevant
record date. If a Redemption/Distribution Notice shall have been given and funds
deposited or paid as required, then immediately prior to the close of business
on the date of such deposit or payment, Distributions will cease to accrue on
the Securities called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
to receive the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Securities will cease to
be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred Securities voting
separately as a class have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
Holder of the Debentures, to (i) exercise the remedies available to it under the
Indenture as a Holder of the Debentures; (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent shall be
required or (iii) waive any past default and its consequences that is waivable
under Section 513 of the Indenture; provided, however, that if an Indenture
Event of Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Preferred Securities may direct the Property
Trustee to declare the principal of and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated liquidation amount of the Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action.
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(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 7.5(b)(i) and (ii) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that the Trust will not fail to be classified as a grantor trust for
United States federal income tax purposes as a result of such action, and each
Holder will be treated as owning an undivided beneficial ownership interest in
the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder
of the Debentures, is required under the Indenture with respect to any amendment
or modification of the Indenture, the Property Trustee shall request the
direction of the Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment or modification as
directed by not less than 66-2/3% of the aggregate liquidation amount of the
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of the Holders of more
than a 66-2/3%of the aggregate principal amount of the Debentures, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in aggregate stated liquidation amount of the Securities.
The Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Securities unless the Property Trustee has
obtained an opinion of independent tax counsel to the effect that the Trust will
not be classified as other than a grantor trust for United States federal income
tax purposes as a result of such action, and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed
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for adoption at such meeting on which such Holders are entitled to vote and
(iii) instructions for the delivery of proxies.
(h) No vote or consent of the Holders of Preferred Securities shall
be required for the Trust to redeem and cancel Preferred Securities or
distribute Debentures in accordance with this Declaration and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Securities that are owned at such time by the Debenture Issuer, any Regular
Trustee or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Debenture Issuer or any Regular Trustee, shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if such Securities were not outstanding; provided,
however, that Persons otherwise eligible to vote to whom the Debenture Issuer or
any of its subsidiaries have pledged Preferred Securities may vote or consent
with respect to such pledged Preferred Securities under any of the circumstances
described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Trustees may be removed at such time only by a Majority in Liquidation
Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article VI of this Declaration,
to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived, or
otherwise eliminated and subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in this paragraph
(c), the Holders of a Majority in Liquidation Amount of the Common Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or direct the exercise of any
trust or power conferred upon the Property Trustee under this Declaration,
including the right to direct the Property Trustee, as Holder of the Debentures,
to (i) exercise the remedies available to it under the Indenture as a Holder of
the Debentures, (ii) consent to any amendment or modification of
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the Indenture or the Debentures where such consent shall be required or (iii)
waive any past default and its consequences that is waivable under Section 513
of the Indenture; provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby, only
the Holders of the percentage of the aggregate stated liquidation amount of the
Common Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 7.6(c)(i) and (ii)
above unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that, as a result of such action, for United States
federal income tax purposes the Trust will not fail to be classified as a
grantor trust and each Holder will be treated as owning an undivided beneficial
ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where the Preferred Securities may be
presented for payment ("Paying Agent"). The Trust may appoint the paying agent
and may appoint one or more additional paying agents in such other locations as
it shall determine. The term "Paying Agent" includes any additional paying
agent. The Trust may change any Paying Agent without prior notice to the
Holders. The Trust shall notify the Property Trustee of the name and address of
any Paying Agent not a party to this Declaration. If the Trust fails to appoint
or maintain another entity as Paying Agent, the
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Property Trustee shall act as such. The Trust or any of its Affiliates may act
as Paying Agent. The Property Trustee shall initially act as Paying Agent for
the Securities. In the event the Property Trustee shall no longer be the Paying
Agent, the Regular Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Debenture Issuer) to act as Paying Agent. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Property Trustee and the Debenture Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall
be freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a
consolidation, merger, sale, conveyance or lease of the
Sponsor in compliance with Article VIII of the Indenture or
(B) to the Sponsor or an Affiliate thereof in compliance
with applicable law, including the Securities Act and
applicable state securities and blue sky laws. To the
fullest extent permitted by law, any attempted transfer of
the Common Securities other than as set forth in the
immediately preceding sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office of
the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Preferred Securities and of transfers of Preferred Securities.
The Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
(d) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
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(e) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Trust 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 or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall not
be required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of the Trustees, the Sponsor
and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 7.10, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
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SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the register of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or
more Global Securities. If the Preferred Securities are to be issued in the form
of one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, 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 Declaration 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 Certificate is
presented by an authorized representative of the Depositary to
Provident Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate 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."
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Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
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 Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or cancelled, such Global Securities shall be, upon receipt thereof,
cancelled by the Property Trustee in accordance with standing procedures of the
Depositary. At any time prior to such cancellation, if any interest in Global
Securities is exchanged for Preferred Securities not represented by a Global
Security, redeemed, cancelled or transferred to a transferee who receives
Preferred Securities not represented by a Global Security therefor or any
Preferred Security not represented by a Global Security is exchanged or
transferred for part of Global Securities, the principal amount of such Global
Securities shall, in accordance with the standing procedures of the Depositary,
be reduced or increased, as the case may be, and an endorsement shall be made on
such Global Securities by the Property Trustee to reflect such reduction or
increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Preferred Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depository participants provided, that no such agreement
shall give any rights to any Person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests and
directions from and votes of the Depositary as holder of Preferred Securities in
global form with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its nominee.
If at any time the Depositary for any Preferred Securities represented
by one or more Global Securities notifies the Trust that it is unwilling or
unable to continue as Depositary for such Preferred Securities or if at any time
the Depositary for such Preferred Securities shall no longer be eligible under
this Section 7.12, the Trust shall appoint a successor Depositary with respect
to such Preferred Securities. If a successor Depositary for such Preferred
Securities is not appointed by the Trust within 90 days after the Trust receives
such notice or becomes aware of such ineligibility, the Trust's election that
such Preferred Securities be represented by one or more Global Securities shall
no longer be effective and the Trust shall execute, and the Property Trustee
will authenticate and deliver, Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security or Preferred Securities
representing such Preferred Securities in exchange for such Global Security or
Preferred Securities.
The Trust may at any time and in its sole discretion determine that
the Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a
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Global Security or Preferred Securities. In such event the Trust shall execute,
and the Property Trustee, shall authenticate and deliver, Preferred Securities
in definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Preferred Securities representing such Preferred Securities, in exchange for
such Global Security or Preferred Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be transferred
or exchanged for Preferred Securities not represented by a Global Security and
Preferred Securities not represented by a Global Security may be transferred or
exchange for Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.9.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities
or the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the
dissolution of the Trust after obtaining the consent
of the Holders of at least a Majority in Liquidation
Amount of the Securities to dissolve the Trust; or
the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the
terms of the Securities;
(v) at the Sponsor's election by notice and direction to
the Property Trustee to distribute the Debentures to
the Holders of the Securities in exchange for all of
the Securities, subject to the receipt of any
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49
necessary approvals by the Federal Reserve that may
then be required under the applicable capital
guidelines or policies of the Federal Reserve;
provided that the Sponsor will be required to obtain
an opinion of an independent counsel that the
distribution of the Debentures will not be taxable to
the Holders of the Preferred Securities for United
States federal income tax purposes; or
(vi) the time when all of the Regular Trustees and the
Sponsor shall have consented to dissolution of the
Trust provided such action is taken before the
issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive
the termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the
Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $25 per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accumulated and
unpaid Distributions on, such Securities shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis. The
Holders of the Common Securities will be entitled to receive distributions upon
any such Liquidation Pro Rata with the Holders of the Preferred Securities
except that if an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with
regard to such distributions.
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50
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall
be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of
the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and 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
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51
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Person and any Indemnified Person;
or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express
standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
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52
SECTION 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action or suit by or in the right
of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed
to the best interests of the Trust and except that no
such indemnification shall be made in respect of any
claim, issue or matter as to which such Debenture
Issuer Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine
upon application that, despite the adjudication of
liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of
Chancery or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall
be made by the Debenture Issuer only as authorized in
the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified
Person is proper in the circumstances because he has
met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of
a quorum consisting of such Regular Trustees who
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53
were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Common Security Holder
of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a
civil, criminal, administrative or investigative
action, suit or proceeding referred to in paragraphs
(i) and (ii) of this Section 9.4(a) shall be paid by
the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such
Debenture Issuer Indemnified Person to repay such
amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer
as authorized in this Section 9.4(a). Notwithstanding
the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority
vote of a quorum of disinterested Regular Trustees,
(ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of
the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder
at the time such determination is made, such Debenture
Issuer Indemnified Person acted in bad faith or in a
manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
paragraphs of this Section 9.4(a) shall not be deemed
exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or
disinterested directors of the Debenture Issuer or
Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to
action in another capacity while holding such office.
All rights to indemnification under this Section 9.4(a)
shall be deemed to be provided by a contract between
the Debenture Issuer and each Debenture Issuer
Indemnified Person who serves in such capacity
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54
at any time while this Section 9.4(a) is in effect. Any
repeal or modification of this Section 9.4(a) shall not
affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or
was a Debenture Issuer Indemnified Person against any
liability asserted against him and incurred by him in
any such capacity, or arising out of his status as
such, whether or not the Debenture Issuer would have
the power to indemnify him against such liability under
the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or
was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request
of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had
continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section
9.4(a) shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to
be a Debenture Issuer Indemnified Person and shall
inure to the benefit of the heirs, executors and
administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4(a) shall
survive the resignation or removal of the Delaware
Trustee or the Property Trustee or the termination of
this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of
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55
this Declaration. In addition, the Debenture Issuer has agreed in the Indenture
to pay the fees and expenses of the Delaware Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property 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 activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
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56
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
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57
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee shall have first
received:
a. an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities) and that all conditions
precedent to the execution and delivery of such
amendment have been satisfied; and
b. an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that all
conditions precedent to the execution and delivery of
such amendment have been satisfied; and
(iii) to the extent the result of such amendment would be
to:
a. cause the Trust to be classified other than as a
grantor trust for United States federal income tax
purposes;
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b. reduce or otherwise adversely affect
the powers of the Property Trustee
in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be
an Investment Company required to be
registered under the Investment
Company Act.
(c) If the Trust has issued any Securities that remain
outstanding:
(i) any amendment that would (a) change the
amount or timing of any distribution of the
Securities or otherwise adversely affect the
amount of any distribution required to be
made in respect of the Securities as of a
specified date or (b) restrict the right of
a Holder of Securities to institute suit for
the enforcement of any such payment on or
after such date, will entitle the Holders of
such Securities, voting together as a single
class, to vote on such amendment or proposal
and such amendment or proposal shall not be
effective except with the approval of each
of the Holders of the Securities affected
thereby; and
(ii) any amendment that would (a) adversely
affect the powers, preferences or special
rights of the Securities, whether by way of
amendment to this Declaration or otherwise
or (b) result in the dissolution, winding-up
or termination of the Trust other than
pursuant to the terms of this Declaration,
will entitle the holders of the Securities
voting together as a single class to vote on
such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of 66 2/3% of the
Securities affected thereby; provided that,
if any amendment or proposal referred to in
clause (a) above would adversely affect only
the Preferred Securities or the Common
Securities, then only the affected class
will be entitled to vote on such amendment
or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article 5 to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities.
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(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities, if such amendment
does not adversely affect in any material respect the rights of the holders of
the Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or
inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 of the
Investment Company Act or written change in
interpretation or application of Rule 3a-5
of the Investment Company Act by any
legislative body, court, government agency
or regulatory authority; or
(v) to modify, eliminate and add to any
provision of this Declaration to ensure that
the Trust will be classified as a grantor
trust for United States federal income tax
purposes at all times that any Securities
are outstanding or to ensure that the Trust
will not be required to register as an
Investment Company under the Investment
Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to
all the Holders of Securities having a right
to vote thereat at least 7 days and not
<PAGE>
60
more than 60 days before the date of such
meeting. Whenever a vote, consent or
approval of the Holders of Securities is
permitted or required under this Declaration
or the rules of any stock exchange on which
the Preferred Securities are listed or
admitted for trading, such vote, consent or
approval may be given at a meeting of the
Holders of Securities. Any action that may
be taken at a meeting of the Holders of
Securities may be taken without a meeting
and without prior notice if a consent in
writing setting forth the action so taken is
signed by the Holders of Securities owning
not less than the minimum amount of
Securities in liquidation amount that would
be necessary to authorize or take such
action at a meeting at which all Holders of
Securities having a right to vote thereon
were present and voting. Prompt notice of
the taking of action without a meeting shall
be given to the Holders of Securities
entitled to vote who have not consented in
writing. The Regular Trustees may specify
that any written ballot submitted to the
Security Holders for the purpose of taking
any action without a meeting shall be
returned to the Trust within the time
specified by the Regular Trustees ;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters
in which a Holder of Securities is entitled
to participate, including waiving notice of
any meeting, or voting or participating at a
meeting. No proxy shall be valid after the
expiration of 11 months from the date
thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities
executing such proxy. Except as otherwise
provided herein, all matters relating to the
giving, voting or validity of proxies shall
be governed by the General Corporation Law
of the State of Delaware relating to
proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware
corporation and the Holders of the
Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Regular
Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this
Declaration, the terms of the Securities,
the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred
Securities are then listed for trading,
otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all
other provisions relating to meetings of
Holders of Securities, including notice of
the time, place or purpose of any meeting at
which any matter is to be voted on by any
Holders of Securities, waiver of any such
notice, action by
<PAGE>
61
consent without a meeting, the establishment
of a record date, quorum requirements,
voting in person or by proxy or any other
matter with respect to the exercise of any
such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property
Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration ;
(b) the Property Trustee satisfies the requirements set
forth in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the articles of association or incorporation, as the case may be, or
the by-laws (or other similar organizational documents) of the Property Trustee;
and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee
<PAGE>
62
represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has
the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
c/o Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Attention: General Counsel
Facsimile No: (513) 763-8069
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
<PAGE>
63
Chase Manhattan Bank Delaware
1201 Market Street, 9/th/ Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Facsimile No: (302) 984-4903
(c) if given to the Property Trustee, at its Corporate Trust
Office (or such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Property Trustee, the
Delaware Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on
the register of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent with
such classification.
SECTION 13.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
<PAGE>
64
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[The remainder of this page left blank intentionally; The
signature page follows.]
<PAGE>
65
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor, as Common Securities Holder and
as Debenture Issuer
By:________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:________________________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:________________________________________
Name:
Title:
CHRISTOPHER J. CAREY, as Regular Trustee
By:________________________________________
<PAGE>
66
MARK E. MAGEE, as Regular Trustee
By:________________________________________
TAFYUN TUZUN, as Regular Trustee
By:________________________________________
<PAGE>
67
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY,
INSERT THE FOLLOWING: This Preferred Security is a GlobaL Preferred Security
within the meaning of the Declaration 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 declaration and no transfer of this Preferred Security (other than a
transfer of this 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 Certificate is presented by an
authorized representative of the Depositary to the issuer or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered 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.]
Certificate No._______________ Number of Preferred Securities:___________
Cusip No._____________________
Certificate Evidencing __% Preferred Securities
of
Provident Capital Trust__
__% Preferred Securities
(Liquidation amount $25 per Preferred Security)
Fully and Unconditionally
Guaranteed by Provident Financial Group, Inc.
PROVIDENT CAPITAL TRUST__, 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 ownership interests in
the assets of the Trust designated the "__% Preferred Security" (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the register 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 the Declaration (as defined below). The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of __________, 1999, as the same may
be amended from time to time (the "Declaration"), by and among PROVIDENT
FINANCIAL GROUP, INC., CHRISTOPHER J.
<PAGE>
68
CAREY, MARK E. MAGEE, ESQ., and TAYFUN TUZUN, as Regular Trustees, THE CHASE
MANHATTAN BANK, as Property Trustee, and CHASE MANHATTAN BANK DELAWARE, as
Delaware Trustee and the Holders. Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee to the extent described therein. The Sponsor will
provide a copy of the Declaration, the Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of______, 1999.
PROVIDENT CAPITAL TRUST __
By:________________________
Name:
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:________________________
Authorized Officer
<PAGE>
69
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
Certificate No.____________ Number of Common Securities:______________
Certificate Evidencing Common Securities
of
Provident Capital Trust __
____ % Common Securities
(Liquidation amount $25 per Common Security)
PROVIDENT CAPITAL TRUST __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
PROVIDENT FINANCIAL GROUP, INC. (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust designated the "_____% Common Securities"
(liquidation amount $25 per Common Security) (the "Common Securities"). The
Common Securities are not transferable and any attempted transfer thereof shall
be void except as permitted by applicable law and by Section 7.9(b)(ii) of the
Declaration (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust,
dated as of ____________, 1999 (as the same may be amended from time to time,
the "Declaration"), by and among Provident Financial Group, Inc., as Sponsor,
CHRISTOPHER J. CAREY, MARK E. MAGEE and TAYFUN TUZUN, as Regular Trustees,
THE CHASE MANHATTAN BANK, as Property Trustee, and CHASE MANHATTAN BANK
DELAWARE, as Delaware Trustee, and the Holders. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the Guarantee
and the Indenture to the Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership interest in
the Debentures.
<PAGE>
70
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _______, 1999.
PROVIDENT CAPITAL TRUST __
By:____________________________________
Name:
Title: Regular Trustee
<PAGE>
Exhibit 4(b)
================================================================================
FORM OF
GUARANTEE AGREEMENT
Dated as of __________, 1999
By and Between
PROVIDENT FINANCIAL GROUP, INC.,
as Guarantor
and
THE CHASE MANHATTAN BANK,
as Trustee
===============================================================================
<PAGE>
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Section of
Indenture Act Of Guarantee
1939, as amended Agreement
- ------------------ ---------------
<S> <C>
310(a)........................................ 4.1(a)
310(b)........................................ 2.8; 4.1(c)
310(c)........................................ Inapplicable
311(a)........................................ 2.2(b)
311(b)........................................ 2.2(b)
311(c)........................................ Inapplicable
312(a)........................................ 2.2(a); 2.9
312(b)........................................ 2.2(b); 2.9
312(c)........................................ 2.9
313(a)........................................ 2.3
313(b)........................................ 2.3
313(c)........................................ 2.3
313(d)........................................ 2.3
314(a)........................................ 2.4
314(b)........................................ Inapplicable
314(c)........................................ 2.5
314(d)........................................ Inapplicable
314(e)........................................ 2.5
314(f)........................................ Inapplicable
315(a)........................................ 3.1(d); 3.2(a)
315(b)........................................ 2.7(a)
315(c)........................................ 3.1(c)
315(d)........................................ 3.1(d)
316(a)........................................ 2.6; 5.4(a)
316(b)........................................ 5.3
316(c)........................................ Inapplicable
317(a)........................................ 2.10
317(b)........................................ Inapplicable
318(a)........................................ 2.1(b)
</TABLE>
- ----------------
* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions............................... 1
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................. 5
SECTION 2.2 Lists of Holders of Securities............................... 5
SECTION 2.3 Reports by Guarantee Trustee................................. 5
SECTION 2.4 Periodic Reports to Guarantee Trustee........................ 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent............. 6
SECTION 2.6 Guarantee Event of Default; Waiver........................... 6
SECTION 2.7 Guarantee Event of Default; Notice........................... 6
SECTION 2.8 Conflicting Interests........................................ 6
SECTION 2.9 Disclosure of Information.................................... 6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim.................. 7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee....................... 7
SECTION 3.2 Certain Rights of Guarantee Trustee.......................... 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee........ 10
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility............................... 11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee.... 11
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.................................................... 12
SECTION 5.2 Waiver of Notice and Demand.................................. 12
SECTION 5.3 Obligations Not Affected..................................... 13
SECTION 5.4 Rights of Holders............................................ 14
SECTION 5.5 Guarantee of Payment......................................... 14
SECTION 5.6 Subrogation.................................................. 14
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 5.7 Independent Obligations....................................... 15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.................................... 15
SECTION 6.2 Ranking....................................................... 15
SECTION 6.3 Subordination of Common Securities............................ 15
ARTICLE 7
TERMINATION
SECTION 7.1 Termination................................................... 16
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation................................................... 16
SECTION 8.2 Indemnification............................................... 16
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns........................................ 17
SECTION 9.2 Amendments.................................................... 17
SECTION 9.3 Notices....................................................... 17
SECTION 9.4 Benefit....................................................... 18
SECTION 9.5 Governing law................................................. 18
</TABLE>
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______, 1999,
is executed and delivered by PROVIDENT FINANCIAL GROUP, INC., an Ohio
corporation (the "Guarantor"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Securities (as defined
herein) of PROVIDENT CAPITAL TRUST ___, a Delaware statutory business trust
(the "Trust").
RECITALS
WHEREAS, pursuant to the Declaration (as defined herein), the Trust is
issuing on the date hereof $___,___,___ aggregate liquidation amount of
preferred securities, having a liquidation amount of $25 per security and
designated the "____% Preferred Securities" [or insert other designation] of the
Trust (the "Preferred Securities") and $_________ aggregate liquidation amount
of common securities, having a liquidation amount of $25 per security and
designated the "____% Common Securities" of the Trust (the "Common Securities"
and, together with the Preferred Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred
and is continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined herein) under this Guarantee are subordinated to
the rights of Holders of Preferred Securities to receive Guarantee Payments
under this Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this Guarantee,
------------------------------
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
<PAGE>
2
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and
Recitals are to Articles, Sections and Recitals of this Guarantee, unless
otherwise specified;
(e) unless otherwise defined in this Guarantee, a term defined in the
Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable; and
(g) the following terms have the following meanings:
"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" has the meaning specified in the Declaration.
"Common Securities" has the meaning specified in the Recitals hereto.
"Corporate Trust Office" means the principal office of the Guarantee
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Guarantee is located
at 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attention: Corporate
Trust Department.
"Covered Person" means a Holder or beneficial owner of Securities.
"Debentures" means the series of junior subordinated debentures to be
issued by Provident Financial Group, Inc. designated the "____% Junior
Subordinated Debentures due 2029" held by the Property Trustee as defined in the
Declaration of the Trust.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of __________ __, 1999, as amended, modified or supplemented from time
to time, among the trustees of the Trust named therein, the Guarantor, as
sponsor, and the Holders, from time to time, of undivided beneficial ownership
interests in the assets of the Trust.
"Global Security" means a fully registered, global Capital Security,
as defined in the Indenture, representing the Preferred Securities.
"Guarantee Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee.
<PAGE>
3
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid by
or on behalf of the Trust: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Securities to
the extent the Trust has sufficient funds available therefor at the time, (ii
the redemption price, including all accumulated and unpaid Distributions to the
date of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (ii upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Debentures to the Holders in exchange for Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Securities to the date of payment,
to the extent the Trust has sufficient funds available therefor and (b) the
amount of assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder. Provided that in determining
whether the Holders of the requisite liquidation amount of Preferred Securities
have voted on any matter provided for in this Guarantee, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Certificates (as
defined in the Declaration), the term "Holders" shall mean the holder of the
Global Certificate acting at the direction of the Beneficial Owners (as defined
in the Declaration).
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture, dated as of __________, 1999, by and
between Provident Financial Group, Inc. and The Chase Manhattan Bank, as
Trustee, and by any indenture supplemental thereto pursuant to which the
Debentures are to be issued to the Property Trustee, as defined in the
Declaration of the Trust.
"List of Holders" has the meaning assigned to it in Section 2.2
hereof.
"Majority in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid
<PAGE>
4
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class. In determining whether the
Holders of the requisite amount of Securities have voted, Securities which are
owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on
the Securities shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer on behalf of such Person 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
acting on behalf of such Person, such condition or covenant has been
complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in the Recitals
hereto.
"Redemption Price" has the meaning specified in the Declaration.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
<PAGE>
5
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. (a) This Guarantee is
--------------------------------
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this 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.
SECTION 2.2 Lists of Holders of Securities. (a) The Guarantor shall
------------------------------
provide the Guarantee Trustee (i) except while the Preferred Securities are
represented by one or more Global Securities at least one Business Day prior to
the date for payment of Distributions, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of the record date relating to the payment of
such Distributions, and (ii at any other time, within 30 days of receipt by the
Guarantor of a written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is given to the
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 Guarantee Trustee by the Guarantor.
The Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it, provided
that the Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by Guarantee Trustee. Within 60 days after May
----------------------------
15 of each year (commencing with the year of the first anniversary of the
issuance of the Securities), the Guarantee Trustee shall provide to the Holders
of the 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 Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee. The Guarantor
-------------------------------------
shall provide to the Guarantee Trustee such documents, reports and information
as required by Section
<PAGE>
6
314(a) (if any) of the Trust Indenture Act and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314(a) of the Trust Indenture Act, but in
no event later than 120 days after the end of each calendar year.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. The
------------------------------------------------
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this 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.
SECTION 2.6 Guarantee Event of Default; Waiver. The Holders of a
----------------------------------
Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee, but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice. (a) The Guarantee
----------------------------------
Trustee shall, within 90 days after the occurrence of a Guarantee Event of
Default actually known to a Responsible Officer of the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all such Guarantee Events of Default, unless such defaults have been
cured before the giving of such notice; provided, that the Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee charged
with the administration of the Declaration shall have obtained actual knowledge
thereof.
SECTION 2.8 Conflicting Interests. The Declaration shall be deemed
---------------------
to be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 2.9 Disclosure of Information. The disclosure of information
-------------------------
as to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, shall not be deemed to be a violation of any
existing law, or any law hereafter enacted which does not specifically refer to
Section 312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
<PAGE>
7
SECTION 2.10 Guarantee Trustee May File Proofs of Claim. Upon the
------------------------------------------
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the
Holders of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee.
--------------------------------------
(a) This Guarantee shall be held by the Guarantee Trustee on behalf
of the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders of the
Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Guarantee Events of Default that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
and is actually known to a Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
<PAGE>
8
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee Events
of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee Trustee,
the Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of
this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the
terms of this Guarantee or if the Guarantee Trustee shall have
reasonable grounds for believing that an indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or liability
is not reasonably assured to it under the terms of this Guarantee.
<PAGE>
9
SECTION 3.2 Certain Rights of Guarantee Trustee. (a) Subject to
-----------------------------------
the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any
rerecording, refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, and the
advice or opinion of such counsel with respect to legal matters shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided, that nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee;
<PAGE>
10
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of
this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action; and
(x) Whenever in the administration of this Guarantee,
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (i) may request written
instructions from the Holders of a Majority in Liquidation Amount of
the Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such written instructions are
received and (iii) shall be protected in conclusively relying on or
acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose any duty
or obligation on the Guarantee Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent to act in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.
-----------------------------------------------------
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
<PAGE>
11
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
------------------------------
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any state or territory
thereof or of the District of Columbia, or a corporation or other
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 million U.S. dollars ($50,000,000),
and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
-------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold such office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The
<PAGE>
12
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing for fees and reimbursement of expenses
which have accrued to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim that the 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 the Trust to pay such
amounts to the Holders. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to (i) extend the
interest payment period on the Debentures pursuant to Section 3.11 thereof and
the Guarantor shall not be obligated hereunder to make any Guarantee Payments
during any Extension Period (as defined in the certificate evidencing the
Debentures) with respect to the Distributions (as defined in the Declaration) on
the Securities and (ii change the maturity date of the Debentures to the extent
permitted by the Indenture.
SECTION 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Trust or any other
Person before proceeding against the Guarantor,
<PAGE>
13
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be absolute and unconditional and shall remain in
full force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (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 Debentures
or any change to the maturity date of the Debentures permitted by the
Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) Any invalidity of, or defect or deficiency in, the Securities;
(f) The settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
<PAGE>
14
There shall be no obligation of the Guarantee Trustee or the Holders
to give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
SECTION 5.4 Rights of Holders.
-----------------
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Debentures on or after the respective due dates specified
in the Debentures, and the amount of the payment will be based on the Holder's
pro rata share of the amount due and owing on all of the Securities. The
Guarantor hereby waives any right or remedy to require that any action on this
Guarantee be brought first against the Trust or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
--------------------
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if at the time of any such payment,
any amounts are due and unpaid under this Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Guarantee Trustee for the benefit of the Holders.
<PAGE>
15
SECTION 5.7 Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections 5.3(a) through 5.3(g),
inclusive, hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
--------------------------
So long as any Securities remain outstanding, if (i) there shall have
occurred an event of default under the Indenture with respect to the Debentures,
(ii there shall be a Guarantee Event of Default or (ii the Guarantor shall have
given notice of its election of an Extension Period as provided in the
certificate evidencing the Debentures and shall not have rescinded such notice,
or such Extension Period or any extension thereof shall be continuing, then the
Guarantor shall not, and shall not permit any subsidiary of the Guarantor, to
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Guarantor's
capital stock or (y) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Guarantor that rank
on a parity with or junior in interest to the Debentures or 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 on a parity with or
junior in interest to the Debentures (other than (a) dividends or distributions
in common stock of the Guarantor, (b) payments under this Guarantee, (c) 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, and
(d) purchases of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans).
SECTION 6.2 Ranking.
-------
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Debt (as defined in the Indenture) of the Guarantor in the same manner and to
the same extent as set forth in Article XIII of the Indenture.
SECTION 6.3 Subordination of Common Securities.
----------------------------------
If a Trust Enforcement Event has occurred and is continuing under the
Declaration, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
<PAGE>
16
ARTICLE 7
TERMINATION
SECTION 7.1 Termination.
-----------
This Guarantee shall terminate upon (i) full payment of the Redemption
Price of all Securities, (ii distribution of the Debentures to the Holders of
all the Securities or (ii full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Trust. Notwithstanding the
foregoing, this Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Guarantee and in a manner that such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 8.2 Indemnification.
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with
<PAGE>
17
the exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Securities then
outstanding.
SECTION 9.2 Amendments.
----------
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee may not be amended without the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities. The
provisions of Section 11.2 of the Declaration with respect to meetings of, and
action by written consent of, the Holders of the Securities apply to the giving
of such approval.
SECTION 9.3 Notices.
-------
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Guarantor and the Holders of the Securities):
The Chase Manhattan Bank
250 West Huron Road, Suite 220
Cleveland, Ohio 44113
Attention: Corporate Trust Department
Facsimile No.: (216) 274-1633
(b) If given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Guarantee Trustee and the Holders of the Securities):
<PAGE>
18
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Attention: General Counsel
Facsimile No.: (513) 763-8069
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Benefit.
-------
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 9.5 Governing Law.
-------------
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
[The rest of this page has been left blank intentionally; the signature page
follows.]
<PAGE>
19
IN WITNESS WHEREOF, this Guarantee is executed as of the day and year
first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Guarantor
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By: ____________________________________
Name:
Title:
<PAGE>
Exhibit 4(d)
CERTIFICATE OF TRUST
OF
PROVIDENT CAPITAL TRUST II
This Certificate of Trust is being duly executed as of May 14, 1999
for the purposes of forming a business trust pursuant to the Delaware Business
Trust Act (12 Del. C. (S) 3801 et. seq.) (the "Act").
------- --- ----
1. Name. The name of the business trust formed hereby is Provident
----
Capital Trust II (the "Trust") .
2. Delaware Trustee. The name and business address of the Delaware
----------------
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street, 9/th/ Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Department
3. Effective Date. This Certificate of Trust, which may be executed
--------------
in counterparts, shall be effective immediately upon filing with the Secretary
of State of the State of Delaware.
[The rest of this page has been intentionally left blank; the signature page
follows.]
<PAGE>
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date first written
above.
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ DAVID KOVACH
-------------------------------------
Name: David Kovach
Title: Authorized Signatory
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ DENIS KELLY
-------------------------------------
Name: Denis Kelly
Title: Trust Officer
/s/ CHRISTOPHER J. CAREY
----------------------------------------
Christopher J. Carey, as Regular Trustee
/s/ MARK E. MAGEE
----------------------------------------
Mark E. Magee, as Regular Trustee
/s/ TAYFUN TUZUN
----------------------------------------
Tayfun Tuzun, as Regular Trustee
<PAGE>
Exhibit 4(e)
CERTIFICATE OF TRUST
OF
PROVIDENT CAPITAL TRUST III
This Certificate of Trust is being duly executed as of May 14, 1999
for the purposes of forming a business trust pursuant to the Delaware Business
Trust Act (12 Del. C. (S) 3801 et. seq.) (the "Act").
------- --- ----
1. Name. The name of the business trust formed hereby is Provident
----
Capital Trust III (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
----------------
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street, 9/th/ Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Department
3. Effective Date. This Certificate of Trust, which may be executed
--------------
in counterparts, shall be effective immediately upon filing with the Secretary
of State of the State of Delaware.
[The rest of this page has been intentionally left blank; the signature page
follows.]
<PAGE>
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date first written
above.
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ DAVID KOVACH
-------------------------------------
Name: David Kovach
Title: Authorized Signatory
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ DENIS KELLY
-------------------------------------
Name: Denis Kelly
Title: Trust Officer
/s/ CHRISTOPHER J. CAREY
----------------------------------------
Christopher J. Carey, as Regular Trustee
/s/ MARK E. MAGEE
----------------------------------------
Mark E. Magee, as Regular Trustee
/s/ TAYFUN TUZUN
----------------------------------------
Tayfun Tuzun, as Regular Trustee
<PAGE>
Exhibit 4(f)
DECLARATION OF TRUST
OF
PROVIDENT CAPITAL TRUST II
This DECLARATION OF TRUST, dated as of May 14, 1999, is entered by
and among PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as Sponsor,
CHASE MANHATTAN BANK DELAWARE, as the initial Delaware Trustee, THE CHASE
MANHATTAN BANK, as the initial Property Trustee, and CHRISTOPHER J. CAREY, MARK
E. MAGEE and TAYFUN TUZUN, as Regular Trustees (collectively with the Delaware
Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Provident Capital Trust II", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. 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. (S) 3801 et seq. (the "Business Trust Act"), and
--- - -- ---
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, 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 preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees 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 and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a 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 possibly certain other securities and (b) 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) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE>
2
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 negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement, (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys 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 Sponsor, on
behalf of the Trust, may deem necessary or desirable and (v) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) Chase Manhattan Bank Delaware and
The Chase Manhattan Bank, in their capacities as Trustees of the Trust, shall
not be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchanges or state securities or blue sky laws, and in such case only to the
extent so required. In connection with all of the foregoing, each Regular
Trustee, solely in such Regular Trustee's capacity as Trustee of the Trust,
hereby constitutes and appoints Robert L. Hoverson, Christopher J. Carey and
Mark E. Magee and each of them, as such Regular Trustee's true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for such Regular Trustee, in such Regular Trustee's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchanges and administrators
of state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) 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 Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may
resign upon thirty days prior notice to the Sponsor.
<PAGE>
3
7. Chase Manhattan Bank Delaware, in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of (S) 3807(a) of
the Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of
the Preferred Securities at the election of the Sponsor.
9. This Declaration shall be governed by and construed in accordance
with the laws of the State of Delaware.
[The rest of this page has been left blank intentionally; the signature page
follows.]
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ MARK E. MAGEE
------------------------------------------
Name: Mark E. Magee
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ DENIS KELLY
------------------------------------------
Name: Denis Kelly
Title: Trust Officer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ DAVID KOVACH
------------------------------------------
Name: David Kovach
Title: Authorized Signatory
/s/ CHRISTOPHER J. CAREY
---------------------------------------------
Christopher J. Carey, as Regular Trustee
/s/ MARK E. MAGEE
---------------------------------------------
Mark E. Magee, as Regular Trustee
/s/ TAYFUN TUZUN
---------------------------------------------
Tayfun Tuzun, as Regular Trustee
<PAGE>
Exhibit 4(g)
DECLARATION OF TRUST
OF
PROVIDENT CAPITAL TRUST III
This DECLARATION OF TRUST, dated as of May 14, 1999, is entered by
and among PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as Sponsor,
CHASE MANHATTAN BANK DELAWARE, as the initial Delaware Trustee, THE CHASE
MANHATTAN BANK, as the initial Property Trustee, and CHRISTOPHER J. CAREY, MARK
E. MAGEE and TAYFUN TUZUN, as Regular Trustees (collectively with the Delaware
Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Provident Capital Trust III", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. 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. (S) 3801 et seq. (the "Business Trust Act"), and
--- - -- ---
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, 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 preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees 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 and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a 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 possibly certain other securities and (b) 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) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE>
2
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 negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement, (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys 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 Sponsor, on
behalf of the Trust, may deem necessary or desirable and (v) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) Chase Manhattan Bank Delaware and
The Chase Manhattan Bank, in their capacities as Trustees of the Trust, shall
not be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchanges or state securities or blue sky laws, and in such case only to the
extent so required. In connection with all of the foregoing, each Regular
Trustee, solely in such Regular Trustee's capacity as Trustee of the Trust,
hereby constitutes and appoints Robert L. Hoverson, Christopher J. Carey and
Mark E. Magee and each of them, as such Regular Trustee's true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for such Regular Trustee, in such Regular Trustee's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchanges and administrators
of state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) 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 Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may
resign upon thirty days prior notice to the Sponsor.
<PAGE>
3
7. Chase Manhattan Bank Delaware, in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of (S) 3807(a) of
the Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of
the Preferred Securities at the election of the Sponsor.
9. This Declaration shall be governed by and construed in accordance
with the laws of the State of Delaware.
[The rest of this page has been left blank intentionally; the signature page
follows.]
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ MARK E. MAGEE
------------------------------------------
Name: Mark E. Magee
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ DENIS KELLY
------------------------------------------
Name: Denis Kelly
Title: Trust Officer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ DAVID KOVACH
------------------------------------------
Name: David Kovach
Title: Authorized Signatory
/s/ CHRISTOPHER J. CAREY
---------------------------------------------
Christopher J. Carey, as Regular Trustee
/s/ MARK E. MAGEE
---------------------------------------------
Mark E. Magee, as Regular Trustee
/s/ TAYFUN TUZUN
---------------------------------------------
Tayfun Tuzun, as Regular Trustee
<PAGE>
EXHIBIT 5(a)
[Letterhead of Richards, Layton & Finger, P.A.]
June 8, 1999
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Re: Provident Capital Trust II
--------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Provident Financial
Group, Inc., an Ohio corporation (the "Company"), and Provident Capital Trust
II, 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, dated as of May 14, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 14, 1999;
(b) The Declaration of Trust of the Trust, dated as of May 14, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
<PAGE>
Provident Capital Trust II
June 8, 1999
Page 2
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus") and prospectus
supplement, relating to the __ % Subordinated Capital Income Securities of the
Trust representing undivided beneficial interests in the assets of the Trust
(each, a "Capital Security" and collectively, the "Capital Securities"), as
proposed to be filed by the Company, the Trust and others with the Securities
and Exchange Commission on or about May 26, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 26, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, that each party to the
documents examined by us has been duly created, organized or formed, as the case
may be, and is validly existing in good standing 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) that each party to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to whom a Capital Security is to be issued by the Trust (collectively,
the "Capital Security Holders") of a Preferred Security Certificate for such
Capital Security and the payment for the Capital Security acquired by it, in
accordance with
<PAGE>
Provident Capital Trust II
June 8, 1999
Page 3
the Declaration and the Registration Statement, and (vii) that the Capital
Securities are issued and sold to the Capital Security Holders in accordance
with the Declaration 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
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
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 Business Trust Act.
2. The Capital Securities 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 Capital 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 Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Opinions" 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. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
RICHARDS, LAYTON & FINGER, P.A.
BJK
<PAGE>
EXHIBIT 5(b)
[Letterhead of Richards, Layton & Finger, P.A.]
June 8, 1999
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Re: Provident Capital Trust III
---------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Provident Financial
Group, Inc., an Ohio corporation (the "Company"), and Provident Capital Trust
III, 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, dated as of May 14, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 14, 1999;
(b) The Declaration of Trust of the Trust, dated as of May 14, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
<PAGE>
Provident Capital Trust III
June 8, 1999
Page 2
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the __ %
Subordinated Capital Income Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be filed by the Company,
the Trust and others with the Securities and Exchange Commission on or about May
26, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 26, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, that each party to the
documents examined by us has been duly created, organized or formed, as the case
may be, and is validly existing in good standing 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) that each party to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to whom a Capital Security is to be issued by the Trust (collectively,
the "Capital Security Holders") of a Preferred Security Certificate for such
Capital Security and the payment for the Capital Security acquired by it, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Capital Securities are issued and sold to the Capital Security Holders in
accordance with the Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
<PAGE>
Provident Capital Trust III
June 8, 1999
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
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 Business Trust Act.
2. The Capital Securities 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 Capital 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 Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Opinions" 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. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
RICHARDS, LAYTON & FINGER, P.A.
BJK
<PAGE>
Exhibit 5(c)
[Letterhead of Simpson Thacher & Bartlett]
June 8, 1999
Provident Financial Group, Inc.
Provident Capital Trust II
Provident Capital Trust III
One East Fourth Street
Cincinnati, Ohio 45202
Re: Provident Financial Group, Inc., Provident
------------------------------------------
Capital Trust II and Provident Capital Trust III
------------------------------------------------
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed under the Securities
Act of 1933 (the "Act"), by Provident Financial Group, Inc., an Ohio corporation
(the "Company"), Provident Capital Trust II and Provident Capital Trust III,
each a Delaware business trust (each, a "Trust", collectively, the "Trusts" and,
together with the Company, the "Registrants"), which Registration Statement
relates to (i) preferred securities representing beneficial ownership interests
in such Trusts (the "Preferred Securities"), (ii) junior subordinated debentures
(the "Debentures") to be issued by the Company and (iii) unconditional and
irrevocable guarantees (the "Guarantees" and each a "Guarantee") of the
obligations of the Trusts under the Preferred Securities that may be issued by
the Company.
We have examined (i) the Registration Statement, (ii) the form of
Indenture (the "Indenture"), between the Company and The Chase Manhattan Bank,
as Debenture Trustee (the "Debenture Trustee"), as filed as an exhibit to the
Registration Statement, and
<PAGE>
-2-
Provident Financial Group, Inc. June 8, 1999
Provident Capital Trust II
Provident Capital Trust III
(iii) the form of Guarantee Agreement (the "Guarantee Agreement") to be executed
by the Company and The Chase Manhattan Bank, as Guarantee Trustee (the
"Guarantee Trustee"), as filed as an exhibit to the Registration Statement. In
addition, we have examined, and have relied as to matters of fact upon,
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. We have also assumed
that the Registration Statement, and any applicable amendments thereto
(including post-effective amendments), will have become effective under the Act
at the time of issuance, offering and sale of any such Preferred Securities,
Debentures or Guarantees.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to the Debentures to be issued under the
Indenture, when (i) the Indenture has been duly authorized and validly
executed and delivered by the Company and the Debenture Trustee, (ii) the
Board of Directors of the Company (the "Board") has taken all necessary
corporate action to approve the issuance and specific terms of such
Debentures and (iii) such Debentures have been duly executed,
authenticated, issued and delivered in accordance with the provisions of
such Indenture upon payment of the consideration therefor as contemplated
by the
<PAGE>
-3-
Provident Financial Group, Inc. June 8, 1999
Provident Capital Trust II
Provident Capital Trust III
Registration Statement, such Debentures will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
2. With respect to the Guarantees, when (i) the related
Guarantee Agreement has been duly authorized and validly executed and
delivered by the Company and by the Guarantee Trustee, (ii) the Board has
taken all necessary corporate action to approve the issuance and specific
terms of the Guarantee evidenced by such Guarantee Agreement and (iii) such
Guarantee Agreement has been duly executed and delivered in accordance with
the provisions thereof, such Guarantee will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
Our opinions set forth in paragraphs 1 and 2 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States.
We hereby consent to the filing of this opinion letter as an exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Opinions" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
<PAGE>
Exhibit 8(a)
[Letterhead of Simpson Thacher & Bartlett]
June 8, 1999
Re: Issuance and Sale of Capital
Securities by Provident Capital Trust II
----------------------------------------
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Provident Capital Trust II
One East Fourth Street
Cincinnati, Ohio 45202
Ladies and Gentlemen:
We have acted as special tax counsel ("Tax Counsel") to Provident
Financial Group, Inc., an Ohio corporation (the "Company"), and Provident
Capital Trust II, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), in connection with the preparation and filing by the
Company and the Trust with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3 (as amended, the
"Registration Statement") under the Securities Act of 1933, as amended, and with
respect to: (i) the issuance and sale of the Junior Subordinated Debentures (the
"Subordinated Debentures") by the Company pursuant to the Indenture (the
"Indenture") between the Company and The Chase Manhattan Bank, as trustee (in
such capacity, the "Debenture Trustee"); and (ii) the issuance and sale of the
Subordinated Capital Income Securities (the "Capital Securities") and Common
Securities (the "Common Securities" and together, the "Trust Securities")
pursuant to the
<PAGE>
-2-
Amended and Restated Declaration of Trust (the "Trust Agreement") among the
Company, as sponsor, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee and the Administrative Trustees
named therein, in the form filed as an exhibit to the Registration Statement.
The Capital Securities will be offered for sale to investors pursuant to the
Registration Statement.
The Trust Securities are guaranteed by the Company with respect to the
payment of distributions and payments upon liquidation, redemption and otherwise
pursuant to, and to the extent set forth in, the Guarantee Agreement (the
"Guarantee"), between the Company and The Chase Manhattan Bank, as trustee (in
such capacity, the "Guarantee Trustee"), for the benefit of the holders of the
Trust Securities, in the form filed as an exhibit to the Registration Statement.
All capitalized terms used in this opinion letter and not otherwise defined
herein shall have the meaning ascribed to such terms in the Registration
Statement.
In delivering this opinion letter, we have reviewed and relied upon: (i)
the Registration Statement; (ii) a form of the Indenture; (iii) a form of the
Subordinated Debentures; (iv) a form of the Trust Agreement; (v) a form of the
Guarantee; and (iv) forms of the Trust Securities, in the case of each "form",
as such form was filed as an exhibit to the Registration Statement. We also have
examined and relied upon originals, or duplicates or certified or conformed
copies, of such records of the Company and the Trust 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 of such material, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies of documents submitted to us.
In addition, we also have
<PAGE>
-3-
assumed that the transactions related to the issuance of the Subordinated
Debentures and the Trust Securities will be consummated in accordance with the
terms of the documents and forms of documents described herein.
On the basis of the foregoing and assuming that the Trust was formed and
will be maintained in compliance with the terms of the Trust Agreement, we
hereby confirm (i) our opinion set forth in the Registration Statement under the
caption "United States Federal Income Tax Consequences" and (ii) that, subject
to the qualifications and limitations set forth herein and therein, the
statements set forth in the Registration Statement under such caption insofar as
they purport to constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
We express no opinion with respect to the transactions referred to herein
or in the Registration Statement other than as expressly set forth herein.
Moreover, we note that there is no authority directly on point dealing with
securities such as the Capital Securities or transactions of the type described
herein and that our opinion is not binding on the Internal Revenue Service or
the courts, either of which could take a contrary position.
Our opinion is based upon the Internal Revenue Code of 1986, as amended,
the Treasury regulations promulgated thereunder and other relevant authorities
and law, all as in effect on the date hereof. Consequently, future changes in
the law may cause the tax treatment of the transactions referred to herein to be
materially different from that described above.
We are members of the Bar of the State of New York, and we do not express
any opinion herein concerning any law other than the federal law of the United
States.
<PAGE>
-4-
We hereby consent to the use of our name in the Registration Statement
under the caption "United States Federal Income Tax Consequences" and "Legal
Opinions".
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
<PAGE>
Exhibit 8(b)
[Letterhead of Simpson Thacher & Bartlett]
June 8, 1999
Re: Issuance and Sale of Capital
Securities by Provident Capital Trust III
-----------------------------------------
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Provident Capital Trust III
One East Fourth Street
Cincinnati, Ohio 45202
Ladies and Gentlemen:
We have acted as special tax counsel ("Tax Counsel") to Provident
Financial Group, Inc., an Ohio corporation (the "Company"), and Provident
Capital Trust III, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), in connection with the preparation and filing
by the Company and the Trust with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3 (as amended, the
"Registration Statement") under the Securities Act of 1933, as amended, and with
respect to: (i) the issuance and sale of the Junior Subordinated Debentures (the
"Subordinated Debentures") by the Company pursuant to the Indenture (the
"Indenture") between the Company and The Chase Manhattan Bank, as trustee (in
such capacity, the "Debenture Trustee"); and (ii) the issuance and sale of the
Subordinated Capital Income Securities (the "Capital Securities") and Common
Securities (the "Common Securities" and together, the "Trust Securities")
pursuant to the
<PAGE>
-2-
Amended and Restated Declaration of Trust (the "Trust Agreement") among the
Company, as sponsor, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee and the Administrative Trustees
named therein, in the form filed as an exhibit to the Registration Statement.
The Capital Securities will be offered for sale to investors pursuant to the
Registration Statement.
The Trust Securities are guaranteed by the Company with respect to the
payment of distributions and payments upon liquidation, redemption and otherwise
pursuant to, and to the extent set forth in, the Guarantee Agreement (the
"Guarantee"), between the Company and The Chase Manhattan Bank, as trustee (in
such capacity, the "Guarantee Trustee"), for the benefit of the holders of the
Trust Securities, in the form filed as an exhibit to the Registration Statement.
All capitalized terms used in this opinion letter and not otherwise defined
herein shall have the meaning ascribed to such terms in the Registration
Statement.
In delivering this opinion letter, we have reviewed and relied upon: (i)
the Registration Statement; (ii) a form of the Indenture; (iii) a form of the
Subordinated Debentures; (iv) a form of the Trust Agreement; (v) a form of the
Guarantee; and (iv) forms of the Trust Securities, in the case of each "form",
as such form was filed as an exhibit to the Registration Statement. We also have
examined and relied upon originals, or duplicates or certified or conformed
copies, of such records of the Company and the Trust 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 of such material, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies of documents submitted to us.
In addition, we also have
<PAGE>
-3-
assumed that the transactions related to the issuance of the Subordinated
Debentures and the Trust Securities will be consummated in accordance with the
terms of the documents and forms of documents described herein.
On the basis of the foregoing and assuming that the Trust was formed and
will be maintained in compliance with the terms of the Trust Agreement, we
hereby confirm (i) our opinion set forth in the Registration Statement under the
caption "United States Federal Income Tax Consequences" and (ii) that, subject
to the qualifications and limitations set forth herein and therein, the
statements set forth in the Registration Statement under such caption insofar as
they purport to constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
We express no opinion with respect to the transactions referred to herein
or in the Registration Statement other than as expressly set forth herein.
Moreover, we note that there is no authority directly on point dealing with
securities such as the Capital Securities or transactions of the type described
herein and that our opinion is not binding on the Internal Revenue Service or
the courts, either of which could take a contrary position.
Our opinion is based upon the Internal Revenue Code of 1986, as amended,
the Treasury regulations promulgated thereunder and other relevant authorities
and law, all as in effect on the date hereof. Consequently, future changes in
the law may cause the tax treatment of the transactions referred to herein to be
materially different from that described above.
We are members of the Bar of the State of New York, and we do not express
any opinion herein concerning any law other than the federal law of the United
States.
<PAGE>
-4-
We hereby consent to the use of our name in the Registration Statement
under the caption "United States Federal Income Tax Consequences" and "Legal
Opinions".
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
<PAGE>
EXHIBIT 12(a)
STATEMENT RE COMPUTATION OF RATIOS
PROVIDENT FINANCIAL GROUP, INC.
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends
(in thousands)
<TABLE>
<CAPTION>
Three Month
Ended Year Ended
March 31, December 31,
------------------------ ---------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------------------------ ---------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
- --------
Net Income $ 33,755 $ 30,660 $114,952 $107,437 $ 78,145 $ 71,860 $ 57,666
Total Provision (Benefit) for Income Taxes 18,379 16,090 61,122 57,093 41,198 35,306 29,871
Income before income tax provision (benefit) 52,134 46,750 176,074 164,530 119,343 107,166 87,537
Fixed charges, excluding interest on deposits 30,513 26,699 128,567 90,603 89,517 69,247 41,078
Fixed charges, including interest on deposits 85,681 81,385 350,873 312,052 282,456 261,644 165,314
Adjusted earnings, excluding interest on deposits 82,647 73,449 304,641 255,133 208,860 176,413 128,615
Adjusted earnings, including interest on deposits 137,815 128,135 526,947 476,582 401,799 368,810 252,851
Fixed Charges:
- -------------
Total Interest Expense $ 85,681 $ 81,385 $350,873 $312,052 $282,456 $261,644 $165,314
Interest on deposits 55,168 54,686 222,306 221,449 192,939 192,397 124,236
Dividend requirement of preferred stock 217 198 791 712 536 2,437 2,971
Adjustment to compute pretax preferred dividend 117 107 426 383 289 1,312 1,600
Fixed charges, excluding interest on deposits 30,847 27,004 129,784 91,698 90,342 72,996 45,649
Fixed charges, including interest on deposits 86,015 81,690 352,090 313,147 283,281 265,393 169,885
Ratio of Earnings to Fixed Charges:
- ----------------------------------
Excluding interest on deposits 2.68 2.72 2.35 2.78 2.31 2.42 2.82
Including interest on deposits 1.60 1.57 1.50 1.52 1.42 1.39 1.49
</TABLE>
<PAGE>
EXHIBIT 12(b)
STATEMENT RE COMPUTATION OF RATIOS
PROVIDENT FINANCIAL GROUP, INC.
Computation of the Ratio of Earnings to Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
Three Month
Ended
March 31, Year Ended December 31,
------------------------ ------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------------------------ ------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
- --------
Net Income $ 33,755 $ 30,660 $114,952 $107,437 $ 78,145 $ 71,860 $ 57,666
Total Provision (Benefit) for Income Taxes 18,379 16,090 61,122 57,093 41,198 35,306 29,871
Income before income tax provision (benefit) 52,134 46,750 176,074 164,530 119,343 107,166 87,537
Fixed charges, excluding interest on deposits 30,513 26,699 128,567 90,603 89,517 69,247 41,078
Fixed charges, including interest on deposits 85,681 81,385 350,873 312,052 282,456 261,644 165,314
Adjusted earnings, excluding interest on deposits 82,647 73,449 304,641 255,133 208,860 176,413 128,615
Adjusted earnings, including interest on deposits 137,815 128,135 526,947 476,582 401,799 368,810 252,851
Fixed Charges:
- -------------
Total Interest Expense $ 85,681 $ 81,385 $350,873 $312,052 $282,456 $261,644 $165,314
Interest on deposits 55,168 54,686 222,306 221,449 192,939 192,397 124,236
Fixed charges, excluding interest on deposits 30,513 26,699 128,567 90,603 89,517 69,247 41,078
Fixed charges, including interest on deposits 85,681 81,385 350,873 312,052 282,456 261,644 165,314
Ratio of Earnings to Fixed Charges:
- ----------------------------------
Excluding interest on deposits 2.71 2.75 2.37 2.82 2.33 2.55 3.13
Including interest on deposits 1.61 1.57 1.50 1.53 1.42 1.41 1.53
</TABLE>
<PAGE>
Exhibit 23(f)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Expert" in
the Registration Statement (Form S-3) and related Prospectus of Provident
Financial Group, Inc. and Provident Capital Trust II and to the incorporation by
reference therein of our report dated January 19, 1999, with respect to the
consolidated financial statements of Provident Financial Group, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
June 8, 1999
<PAGE>
Exhibit 25(a)
________________________________________________________________________________
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) ________
__________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Provident Financial Group, Inc.
(Exact name of obligor as specified in its charter)
Ohio 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
--------------------------------------------------
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110. Board of Governors of the Federal Reserve System,
Washington, D.C., 20551 Federal Reserve Bank of New York, District
No. 2, 33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ JOANNE ADAMIS
----------------------------------------
Joanne Adamis
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin..................................................... $ 13,915
Interest-bearing balances............................................. 7,805
Securities:.............................................................
Held to maturity securities............................................. 1,429
Available for sale securities........................................... 56,327
Federal funds sold and securities purchased under
agreements to resell.................................................. 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve........ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve................................................ 128,384
Trading Assets.......................................................... 48,949
Premises and fixed assets (including capitalized
leases)............................................................... 3,095
Other real estate owned................................................. 239
Investments in unconsolidated subsidiaries and
associated companies.................................................. 199
Customers' liability to this bank on acceptances
outstanding........................................................... 1,209
Intangible assets....................................................... 2,081
Other assets............................................................ 11,352
--------
TOTAL ASSETS............................................................ $296,717
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices.............................................. $105,879
Noninterest-bearing.......................$ 39,175
Interest-bearing.......................... 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's........................................... 79,294
Noninterest-bearing.......................$ 4,082
Interest-bearing.......................... 75,212
Federal funds purchased and securities sold under
agreements to repurchase........................................... 32,546
Demand notes issued to the U.S. Treasury........................... 629
Trading liabilities................................................ 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.................... 4,478
With a remaining maturity of more than one year
through three years......................................... 213
With a remaining maturity of more than three
years....................................................... 115
Bank's liability on acceptances executed and
outstanding........................................................ 1,209
Subordinated notes and debentures.................................. 5,408
Other liabilities.................................................. 10,855
TOTAL LIABILITIES.................................................. 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock....................................................... 1,211
Surplus (exclude all surplus related to preferred stock)........... 11,016
Undivided profits and capital reserves............................. 6,762
Net unrealized holding gains (losses)
on available-for-sale securities................................... 279
Cumulative foreign currency translation adjustments................ 16
TOTAL EQUITY CAPITAL............................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
Exhibit 25(b)
------------------------------------------------------------------------
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) ________
------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------------------------------------
Provident Capital Trust II
(Exact name of obligor as specified in its charter)
Ohio Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
------------------------------------------
Preferred Securities
(Title of the indenture securities)
------------------------------------------------------------------------
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ JOANNE ADAMIS
----------------------------
Joanne Adamis
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................................ $ 13,915
Interest-bearing balances................................................ 7,805
Securities:
Held to maturity securities................................................ 1,429
Available for sale securities.............................................. 56,327
Federal funds sold and securities purchased under
agreements to resell..................................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve....... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve................................................... 128,384
Trading Assets............................................................. 48,949
Premises and fixed assets (including capitalized
leases).................................................................. 3,095
Other real estate owned.................................................... 239
Investments in unconsolidated subsidiaries and
associated companies..................................................... 199
Customers' liability to this bank on acceptances
outstanding.............................................................. 1,209
Intangible assets.......................................................... 2,081
Other assets............................................................... 11,352
--------
TOTAL ASSETS............................................................... $296,717
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices........................................ $105,879
Noninterest-bearing...$ 39,175
Interest-bearing...... 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's..................................... 79,294
Noninterest-bearing...$ 4,082
Interest-bearing...... 75,212
Federal funds purchased and securities sold under agree-
ments to repurchase.......................................... 32,546
Demand notes issued to the U.S. Treasury..................... 629
Trading liabilities.......................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.............. 4,478
With a remaining maturity of more than one year
through three years................................... 213
With a remaining maturity of more than three years......... 115
Bank's liability on acceptances executed and outstanding..... 1,209
Subordinated notes and debentures............................ 5,408
Other liabilities............................................ 10,855
TOTAL LIABILITIES............................................ 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................ 0
Common stock................................................. 1,211
Surplus (exclude all surplus related to preferred stock).... 11,016
Undivided profits and capital reserves....................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities............................. 279
Cumulative foreign currency translation adjustments.......... 16
TOTAL EQUITY CAPITAL......................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL......................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
Exhibit 25(c)
---------------------------------------------------------------------------
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) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
Provident Capital Trust III
--------------------------------------------
(Exact name of obligor as specified in its charter)
Ohio Applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
-----------
Preferred Securities
(Title of the indenture securities)
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ JOANNE ADAMIS
------------------------------
Joanne Adamis
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin............................................... $ 13,915
Interest-bearing balances ...................................... 7,805
Securities:..........................................................
Held to maturity securities.......................................... 1,429
Available for sale securities........................................ 56,327
Federal funds sold and securities purchased under
agreements to resell............................................ 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve....... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve.......................................... 128,384
Trading Assets....................................................... 48,949
Premises and fixed assets (including capitalized
leases)......................................................... 3,095
Other real estate owned.............................................. 239
Investments in unconsolidated subsidiaries and
associated companies............................................ 199
Customers' liability to this bank on acceptances
outstanding..................................................... 1,209
Intangible assets.................................................... 2,081
Other assets......................................................... 11,352
---------
TOTAL ASSETS......................................................... $ 296,717
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices............................................... $105,879
Noninterest-bearing ......................$ 39,175
Interest-bearing ......................... 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's............................................ 79,294
Noninterest-bearing ......................$ 4,082
Interest-bearing ......................... 75,212
Federal funds purchased and securities sold under agreements to
repurchase............................................................. 32,546
Demand notes issued to the U.S. Treasury............................... 629
Trading liabilities.................................................... 36,807
Otherborrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one year or less..................... 4,478
With a remaining maturity of more than one year
through three years........................................ 213
With a remaining maturity of more than three years................ 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures ..................................... 5,408
Other liabilities...................................................... 10,855
TOTAL LIABILITIES...................................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock........................................................... 1,211
Surplus (exclude all surplus related to preferred stock).............. 11,016
Undivided profits and capital reserves ................................ 6,762
Net unrealized holding gains (losses)
on available-for-sale securities....................................... 279
Cumulative foreign currency translation adjustments ................... 16
TOTAL EQUITY CAPITAL................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................................. $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
Exhibit 25(d)
____________________________________________________________________________
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) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Provident Financial Group, Inc.
(Exact name of obligor as specified in its charter)
Ohio 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
-------------------------------------------
Guarantees of Preferred Securities
issued by Provident Capital Trust II
(Title of the indenture securities)2
____________________________________________________________________________
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ JOANNE ADAMIS
--------------------------
Joanne Adamis
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 13,915
Interest-bearing balances ................................ 7,805
Securities:
Held to maturity securities.................................... 1,429
Available for sale securities.................................. 56,327
Federal funds sold and securities purchased under
agreements to resell...................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 128,384
Trading Assets................................................. 48,949
Premises and fixed assets (including capitalized
leases)................................................... 3,095
Other real estate owned........................................ 239
Investments in unconsolidated subsidiaries and
associated companies...................................... 199
Customers' liability to this bank on acceptances
outstanding............................................... 1,209
Intangible assets.............................................. 2,081
Other assets................................................... 11,352
--------
TOTAL ASSETS................................................... $296,717
========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices.......................................... $105,879
Noninterest-bearing......................$ 39,175
Interest-bearing......................... 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's....................................... 79,294
Noninterest-bearing......................$ 4,082
Interest-bearing......................... 75,212
Federal funds purchased and securities sold under agreements
to repurchase..................................................... 32,546
Demand notes issued to the U.S. Treasury.......................... 629
Trading liabilities............................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................ 4,478
With a remaining maturity of more than one year
through three years....................................... 213
With a remaining maturity of more than three years........... 115
Bank's liability on acceptances executed and outstanding.......... 1,209
Subordinated notes and debentures................................. 5,408
Other liabilities................................................. 10,855
TOTAL LIABILITIES................................................. 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................... 0
Common stock...................................................... 1,211
Surplus (exclude all surplus related to preferred stock).......... 11,016
Undivided profits and capital reserves............................ 6,762
Net unrealized holding gains (losses)
on available-for-sale securities.................................. 279
Cumulative foreign currency translation adjustments............... 16
TOTAL EQUITY CAPITAL.............................................. 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $296,717
========
</TABLE>
I, Joseph L. Sclafani E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and belief
has been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
Exhibit 25(e)
- --------------------------------------------------------------------------------
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) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Provident Financial Group, Inc.
(Exact name of obligor as specified in its charter)
Ohio 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
---------------------------------------------
Guarantees of Preferred Securities
Issued by Provident Capital Trust III
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New
York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ JOANNE ADAMIS
-----------------------------------
Joanne Adamis
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 13,915
Interest-bearing balances ................................ 7,805
Securities:
Held to maturity securities.................................... 1,429
Available for sale securities.................................. 56,327
Federal funds sold and securities purchased under
agreements to resell...................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve....... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 128,384
Trading Assets................................................. 48,949
Premises and fixed assets (including capitalized
leases)................................................... 3,095
Other real estate owned........................................ 239
Investments in unconsolidated subsidiaries and
associated companies...................................... 199
Customers' liability to this bank on acceptances
outstanding............................................... 1,209
Intangible assets.............................................. 2,081
Other assets................................................... 11,352
--------
TOTAL ASSETS................................................... $296,717
========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices.......................................... $105,879
Noninterest-bearing......................$ 39,175
Interest-bearing......................... 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's....................................... 79,294
Noninterest-bearing......................$ 4,082
Interest-bearing......................... 75,212
Federal funds purchased and securities sold under agreements
to repurchase..................................................... 32,546
Demand notes issued to the U.S. Treasury.......................... 629
Trading liabilities............................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................ 4,478
With a remaining maturity of more than one year
through three years....................................... 213
With a remaining maturity of more than three years........... 115
Bank's liability on acceptances executed and outstanding.......... 1,209
Subordinated notes and debentures ................................ 5,408
Other liabilities................................................. 10,855
TOTAL LIABILITIES................................................. 277,433
========
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................... 0
Common stock...................................................... 1,211
Surplus (exclude all surplus related to preferred stock).......... 11,016
Undivided profits and capital reserves ........................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities.................................. 279
Cumulative foreign currency translation adjustments............... 16
TOTAL EQUITY CAPITAL.............................................. 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................. $296,717
========
</TABLE>
I, Joseph L. Sclafani E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and belief
has been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
