<PAGE>
As filed with the Securities and Exchange Commission on October 19, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FIRST COMMONWEALTH FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
----------------
6711
(Primary Standard Industrial Classification Code Number)
PENNSYLVANIA 25-1428528
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
FIRST COMMONWEALTH CAPITAL TRUST I
(Exact name of registrant as specified in its charter)
----------------
6733
(Primary Standard Industrial Classification Code Number)
DELAWARE 25-6665847
(State or Other Jurisdiction of Incorporation
or Organization)
(I.R.S. Employer Identification
Number)
David R. Tomb, Jr., Esq.
c/o First Commonwealth Financial Senior Vice President
Corporation First Commonwealth Financial
Old Courthouse Square Corporation
22 North Sixth Street Old Courthouse Square
Indiana, Pennsylvania 15701 22 North Sixth Street
(724) 349-7220 Indiana, Pennsylvania 15701
(724) 349-7220
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrants' Principal Executive Offices)
(Name, Address, Including Zip Code,
and Telephone Number, Including Area
Code, of Agent For Service)
----------------
Copies to:
Robert M. Jones, Jr., Esq.
Drinker Biddle & Reath LLP
One Logan Square
Eighteenth and Cherry Streets
Philadelphia, Pennsylvania 19103
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
<CAPTION>
Title of Each Class Proposed
of Maximum Proposed Maximum Amount of
Securities To Be Amount To Be Offering Price Aggregate Registration
Registered Registered Per Unit(1) Offering Price(1) Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series B 9.50% capital
securities of First
Commonwealth Capital
Trust I................ $35,000,000 100% $35,000,000 $9,730.00
- ----------------------------------------------------------------------------------------
Series B 9.50% junior
subordinated deferrable
interest debentures of
First Commonwealth
Financial
Corporation(2).........
- ----------------------------------------------------------------------------------------
First Commonwealth
Financial Corporation
Series B capital
securities guarantee
with respect to Series
B 9.50% capital
securities of First
Commonwealth Capital
Trust I(3).............
- ----------------------------------------------------------------------------------------
Total(4)................ $35,000,000(5) 100% $35,000,000(5) $9,730.00
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</TABLE>
(1) Calculated in accordance with Rule 457 solely for the purpose of
determining the registration fee.
(2) No separate consideration will be received for the Series B 9.50% junior
subordinated deferrable interest debentures of First Commonwealth Financial
Corporation distributed upon any liquidation of First Commonwealth Capital
Trust I.
(3) No separate consideration will be received for the Series B guarantee of
First Commonwealth Financial Corporation.
(4) This Registration Statement is also deemed to cover rights of holders of
the Series B 9.50% junior subordinated deferrable interest debentures under
the indenture, the rights of holders of Series B 9.50% capital securities
of First Commonwealth Capital Trust I under the declaration of trust, the
rights of holders of the Series B 9.50% capital securities under the Series
B 9.50% capital securities guarantee and certain back-up undertakings as
described herein.
(5) Such amount represents the liquidation amount of the First Commonwealth
Capital Trust I Series B capital securities to be exchanged hereunder and
the principal amount of First Commonwealth Financial Corporation Series B
junior subordinated deferrable interest debentures that may be distributed
to holders of Series B capital securities upon any liquidation of First
Commonwealth Capital Trust I.
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 of 1933 or until the registration statement shall thereafter
become effective on such date as the Commission, acting pursuant to said
Section 8(a) may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
FIRST COMMONWEALTH CAPITAL TRUST I
Offer to exchange
Series B 9.50% capital securities
for any and all of its outstanding
Series A 9.50% capital securities
(liquidation amount $1,000 per capital security)
Fully and unconditionally guaranteed as described in this prospectus by
First Commonwealth Financial Corporation
First Commonwealth Capital Trust I, a Delaware statutory business trust, is
offering to exchange up to $35,000,000 aggregate liquidation amount of its
Series B 9.50% capital securities for its outstanding Series A 9.50% capital
securities, of which $35,000,000 are outstanding. We refer to the Series B
capital securities in this prospectus as the exchange capital securities, and
we refer to the Series A capital securities as the original capital securities.
As part of this exchange offer, First Commonwealth Financial Corporation is
also offering to exchange its guarantee of First Commonwealth Capital Trust I's
obligations under the original capital securities for a similar guarantee of
First Commonwealth Capital Trust I's obligations under the exchange capital
securities. We refer to the guarantee of First Commonwealth Financial
Corporation under the original capital securities in this prospectus as the
original guarantee; and we refer to the guarantee of the exchange capital
securities in this prospectus as the exchange guarantee. Also as part of this
exchange offer, First Commonwealth Financial Corporation is offering to
exchange up to $35,000,000 of its Series B 9.50% junior subordinated deferrable
interest debentures for a similar amount of its Series A 9.50% junior
subordinated deferrable interest debentures. We refer to the Series B
debentures in this prospectus as the exchange debentures, and we refer to the
Series A debentures as the original debentures.
The terms of the exchange capital securities, debentures and guarantee are
the same as the terms of the original capital securities, debentures and
guarantee except that:
. the exchange capital securities, exchange debentures and exchange
guarantee are registered under the Securities Act and do not have the
same restrictions on transfer as the original securities;
. the distribution rate on the exchange capital securities will not have
the potential to increase; and
. the interest rate on the exchange debentures will not have the potential
to increase.
This prospectus and a transmittal letter describing the procedures for
exchanging original capital securities for the exchange capital securities are
first being mailed to all of the holders of the original capital securities on
, 1999. The offer expires at 5:00 p.m., New York City time, on
, 1999, unless extended.
There has been no public market for the exchange capital securities before
this exchange offer. We do not intend to apply for listing for the exchange
capital securities on any national securities exchange or for quotation through
the Nasdaq National Market.
You should carefully consider the "Risk Factors" beginning on page 7
before deciding whether to exchange your original capital securities for
exchange capital securities.
These securities are not deposits or other obligations of a bank and are not
insured by the Federal Deposit Insurance Corporation or any other governmental
agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 1999.
<PAGE>
SUMMARY INFORMATION--Q&A
This summary includes questions and answers that highlight selected
information from the prospectus to help you understand the exchange offer. You
should carefully read the prospectus in its entirety to understand fully the
terms of the exchange offer, as well as the tax and other considerations that
are important to you in making a decision about whether to exchange your
original capital securities. You should pay special attention to the "Risk
Factors" section beginning on page 7 of this prospectus to determine whether an
investment in the exchange capital securities is appropriate for you. The
prospectus and the letter of transmittal that accompanies it together
constitute the exchange offer.
For your convenience, we make reference to specific page numbers in this
prospectus for more detailed information regarding some of the terms and
concepts used throughout this prospectus.
Throughout this prospectus, unless we indicate otherwise, references to
capital securities include both the original and exchange capital securities,
references to debentures include both the original and exchange debentures, and
references to the capital securities guarantee include both the original and
exchange capital securities guarantee. The terms "we," "us," "our" and "First
Commonwealth" refer to First Commonwealth Financial Corporation. The term "the
Trust" refers to First Commonwealth Capital Trust I.
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere, or incorporated by
reference, in this prospectus.
What is First Commonwealth Financial Corporation?
We are a Pennsylvania corporation registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended. We operate two banks, First
Commonwealth Bank and Southwest Bank. We also provide personal financial
planning and other financial services and insurance products through First
Commonwealth Trust Company and First Commonwealth Insurance Agency. We also
operate Commonwealth Systems Corporation, a data processing subsidiary. At June
30, 1999, we had consolidated total assets of $4.2 billion, total deposits of
$3.0 billion and stockholders' equity of $339 million. Our principal executive
offices are located at 22 North Sixth Street, Indiana, Pennsylvania 15701. Our
telephone number is (724) 349-7220. Our common stock is listed as "FCF" on the
New York Stock Exchange.
For more information about us, please see the section entitled "First
Commonwealth" in this prospectus. You should also read the other documents we
have filed with the SEC, which you can find by referring to the section
entitled "Where You Can Find More Information" in this prospectus.
What is First Commonwealth Capital Trust I?
First Commonwealth Capital Trust I is a Delaware business trust. The Trust
sold its original capital securities to investors and its common securities to
us. The Trust used the proceeds from these sales to buy from us the original
debentures with the same economic terms as its original capital securities.
What are the capital securities?
Each capital security represents an undivided beneficial interest in the
assets of the Trust. The Trust has issued $35,000,000 in aggregate liquidation
amount of original capital securities.
What are the common securities?
The common securities and the capital securities are the same in all
material respects, except that:
. the common securities are non-transferable;
1
<PAGE>
. the holder of the common securities has, until the occurrence of an
Event of Default (as defined on page 52), the sole right to remove or
increase or decrease the number of trustees of the Trust; and
. the capital securities will have a preference over the common securities
with respect to cash distributions and amounts payable on liquidation,
redemption or otherwise under the circumstances described in
"Description of Capital Securities--Subordination of Common Securities."
What are the exchange capital securities?
We and the Trust have registered up to $35,000,000 aggregate liquidation
amount of exchange capital securities under the Securities Act. The terms of
the exchange capital securities are the same as the terms of the original
capital securities, except that the exchange capital securities:
. have been registered under the Securities Act;
. will not be subject to certain transfer restrictions applicable to your
original capital securities; and
. will not provide for any increase in the distribution rate.
. the exchange debentures will not provide for any increase in the
interest rate.
See "Description of Capital Securities" for more information on the capital
securities.
What is the exchange offer?
We and the Trust are offering to exchange up to $35,000,000 aggregate
liquidation amount of exchange capital securities for an equal aggregate
liquidation amount of original capital securities. We are making this exchange
offer in order to satisfy our obligations under a registration rights agreement
relating to your original capital securities. See "The Exchange Offer" for a
description of the procedures for tendering your original capital securities.
When does the exchange offer expire?
The exchange offer will expire at 5:00 p.m., New York City time, on
, 1999, unless we and the Trust extend it. See "The Exchange Offer--
Expiration Date; Extension; Amendments."
What are the conditions to the exchange offer?
The exchange offer is subject to certain conditions, which we may waive at
our discretion. The exchange offer is not conditioned upon the tender of any
minimum liquidation amount of original capital securities. See "The Exchange
Offer--Conditions to the Exchange Offer."
What are the terms of the exchange offer?
We reserve the right at any time and from time to time:
. to delay accepting the original capital securities for exchange;
. to end the exchange offer if specified conditions are not satisfied;
. to extend the exchange offer and keep the original capital securities
tendered under the exchange offer, subject to your right to withdraw
your tendered original capital securities; or
. to waive any condition or otherwise change the terms of the exchange
offer in any way.
2
<PAGE>
See "The Exchange Offer--Terms of the Exchange Offer."
If you wish to exchange your original capital securities for exchange
capital securities, you will be required to represent that:
. you are not an affiliate of First Commonwealth Financial Corporation or
the Trust;
. you are acquiring exchange capital securities in the ordinary course of
your business;
. you have no arrangement or understanding with any person to participate
in a "distribution" within the meaning of the Securities Act of such
exchange capital securities; and
. you are not engaged in, and do not intend to engage in, a "distribution"
within the meaning of the Securities Act of such exchange capital
securities.
See "The Exchange Offer--Resales of Exchange Capital Securities."
If I tender my original capital securities, will I be allowed to withdraw my
tender?
You may withdraw your tender of original capital securities at any time
before the expiration date by delivering written notice of your withdrawal to
the exchange agent as described below under the caption "The Exchange Offer--
Withdrawal Rights." If you withdraw your tender, your original capital
securities will remain subject to transfer restrictions.
How do I tender my original capital securities?
You must complete and sign a letter of transmittal and mail, send by
facsimile or hand deliver it, together with any other documents required by the
letter of transmittal, to the exchange agent, either with your original capital
securities or in compliance with the specified procedures for guaranteed
delivery of original capital securities. Certain brokers, dealers, commercial
banks, trust companies and other nominees may also effect tenders by book-entry
transfer. If your original capital securities are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee, you should
contact such person promptly if you wish to tender your original capital
securities in the exchange offer. See "The Exchange Offer--Procedures for
Tendering Original Capital Securities."
Will exchange capital securities be freely transferable?
In making the exchange offer, we are relying on the position of the staff of
the Securities and Exchange Commission's Division of Corporation Finance
contained in certain interpretive letters addressed to third parties in other
transactions. However, we have not sought our own interpretive letter.
Therefore, there is no guarantee that the staff of the Securities and Exchange
Commission's Division of Corporation Finance would make a similar determination
regarding the exchange offer as it has in the interpretive letters to third
parties.
Unless you are a broker-dealer or an affiliate of either First Commonwealth
Financial Corporation or the Trust, we believe, based on those interpretive
letters, that you may sell or otherwise transfer exchange capital securities
issued to you in this exchange offer in exchange for your original capital
securities without further compliance with the registration and prospectus
delivery requirements of the Securities Act.
If you are a broker-dealer or an affiliate of either First Commonwealth
Financial Corporation or the Trust, then you will be subject to further
restrictions described in "The Exchange Offer--Resales of Exchange Capital
Securities."
3
<PAGE>
Subject to the limitations described in "The Exchange Offer--Resales of
Exchange Capital Securities," we have agreed that this prospectus, as it may be
changed or supplemented from time to time, may be used by participating broker-
dealers in connection with the resales of exchange capital securities. See
"Certain Resales."
Who is the exchange agent?
The exchange agent for the exchange offer is The Chase Manhattan Bank. The
address, telephone number and facsimile number of the exchange agent are listed
in "The Exchange Offer--Exchange Agent" and in the letter of transmittal.
Will there be any proceeds of this offering?
Neither we nor the Trust will receive any cash proceeds from the issuance of
the exchange capital securities. The original capital securities acquired by
the Trust will be retired.
What are the tax and ERISA consequences of this offer?
You should review carefully the information contained under the caption
"Federal Income Tax Consequences" and "ERISA Considerations" before tendering
your original capital securities in the exchange offer.
What distributions will you receive on the capital securities?
As a holder of capital securities, you will be entitled to receive
cumulative cash distributions at an annual rate of 9.50% of the liquidation
amount of $1,000 per capital security. Distributions accumulate from September
8, 1999 and will be payable semi-annually in arrears on March 1 and September 1
of each year, beginning March 1, 2000 to the holders of the capital securities
on the relevant record dates which will be the fifteenth day of the month which
precedes the month in which the distribution date falls.
We will withhold the Pennsylvania Corporate Loans Tax from interest payments
on the portion of the debentures that are held by the Trust for the benefit of
holders of capital securities who are subject to the tax, principally
individuals, partnerships and unincorporated associations resident in
Pennsylvania. Any amounts so withheld will reduce, to the extent of the
withholding, distributions payable to holders of capital securities.
When can payment of your distributions be deferred?
We may, on one or more occasions, defer interest payments on the debentures
for up to 10 consecutive semi-annual periods with respect to each deferral
period unless an event of default under the debentures has occurred and is
continuing. See page 52 for a description of the events of default under the
debentures. A deferral of interest payments cannot extend beyond the stated
maturity date of the debentures (which is September 1, 2029).
If we defer interest payments on the debentures, the Trust will also defer
its distributions on the capital securities. During this deferral period,
distributions will continue to accumulate on the capital securities at an
annual rate of 9.50% of the liquidation amount of $1,000 per capital security.
Also, the deferred distributions will themselves accumulate distributions at an
annual rate of 9.50% (to the extent permitted by law). Once we make all
deferred interest payments on the debentures, with accrued interest, we may
again defer interest payments on the debentures if no event of default under
the debentures has then occurred and is continuing.
4
<PAGE>
During any period in which we defer interest payments on the debentures, we
will not be permitted to (with certain exceptions described on page 47):
. 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 a principal, premium or interest payment, or repurchase or redeem,
any of our debt securities that rank equal with or junior to the
debentures; or
. make any guarantee payments with respect to any guarantee by us of any
securities of any of our subsidiaries if the guarantee ranks equal to or
junior in right of payment to the debentures.
If we defer interest payments on the debentures, you will be required to
accrue interest income for United States federal income tax purposes before you
receive cash distributions. See "Federal Income Tax Consequences" on page 64
and "Risk Factors--Our ability to defer distributions has tax consequences for
you and may affect the trading price of the capital securities" on page 8.
When can the Trust redeem the capital securities?
The Trust will redeem all of the outstanding capital securities when the
debentures are paid at maturity on September 1, 2029.
Subject to receiving the approval of the Board of Governors of the Federal
Reserve System, we may redeem the debentures, in whole or in part, at any time
on or after September 1, 2009, at a redemption price equal to 104.750% of the
principal amount of the debentures on September 1, 2009, declining ratably on
each September 1 thereafter to 100% on or after September 1, 2019, plus accrued
and unpaid interest to the date of redemption.
In addition, again subject to receiving prior approval of the Federal
Reserve, prior to September 1, 2009, we may redeem the debentures, in whole but
not in part, upon the occurrence of certain events affecting (1) the tax status
of the Trust or the tax treatment of interest on the debentures or (2) whether
the capital securities constitute Tier 1 Capital under applicable capital
guidelines of the Federal Reserve. The redemption price in these circumstances
would be equal to the greater of (a) 100% of the principal amount of the
debentures or (b) the sum, as determined by a quotation agent, of the present
values of the principal amount and premium payable as part of the redemption
price with respect to an optional redemption of the debentures on September 1,
2009, together with scheduled payments of interest from the redemption date to
September 1, 2009, in each case discounted to the redemption date on a semi-
annual basis (assuming a 360-day year consisting of twelve 30-day months) at an
adjusted treasury rate, plus in either case accrued and unpaid interest thereon
to the date of redemption.
If we redeem any debentures before their maturity, the Trust will use the
cash it receives on the redemption of the debentures to redeem, on a pro rata
basis, capital securities and common securities having an aggregate liquidation
amount equal to the aggregate principal amount of the debentures redeemed.
However, if an event of default under the amended and restated declaration of
trust of the Trust has occurred and is continuing, the capital securities will
be redeemed before any common securities. See page 36 for a description of an
event of default under the declaration.
What is the nature of our guarantee of the capital securities?
We fully and unconditionally guaranteed the original capital securities and,
when issued, will guarantee the exchange capital securities on the same terms
based on:
. our obligations to make payments on the debentures;
. our obligations under our capital securities guarantee; and
5
<PAGE>
. our obligations under the declaration and our junior subordinated
debentures indenture.
If we do not make a required payment on the debentures, the Trust will not
have sufficient funds to make the related payment on the capital securities.
The capital securities guarantee does not cover payments on the capital
securities when the Trust does not have sufficient funds to make such payments.
Our obligations under the debentures are junior to our obligations to make
payments on our senior indebtedness, as this term is described on page 55,
while our obligations under the capital securities guarantee are junior to our
obligations to make payments on all of our other liabilities, except as
discussed elsewhere in this prospectus. See "Risk Factors--Our obligations
under the debentures and the capital securities guarantee are subordinated" on
page 7.
Will there be a public market for the exchange capital securities?
We do not plan to list the exchange capital securities on the New York Stock
Exchange or any other exchange. No one has made a binding agreement to make a
market for the exchange capital securities. We offer no assurance that a market
for the exchange capital securities will develop or provide meaningful
liquidity to investors.
When can the debentures be distributed to you?
As the sponsor of the Trust, we have the right to dissolve the Trust at any
time if the dissolution and any distribution of the debentures would not result
in a taxable event to holders of the capital securities. If we exercise this
right to dissolve the Trust, the Trust will be liquidated by distribution of
the debentures to holders of the capital securities and the common securities.
What happens if the Trust is dissolved and the debentures are not distributed?
The Trust may also be dissolved in circumstances where the debentures will
not be distributed to you. In those situations, after satisfaction of creditors
of the Trust, if any, the Trust will be obligated to pay in cash the
liquidation amount of $1,000 for each capital security plus accumulated
distributions to the date such payment is made. The Trust will be able to make
this liquidation distribution only if we redeem the debentures.
Do I have voting rights?
Generally, holders of capital securities do not have any voting rights,
except under the limited circumstances described below. The holders of a
majority of the capital securities, however, have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
property trustee of the Trust, or direct the exercise of any trust or other
power conferred upon the property trustee of the Trust.
What other rights do I have as a holder of the capital securities?
As a holder of the capital securities, you have the right to bring a direct
action against us if we do not:
. pay the principal of or premium, if any, or interest on the debentures
in accordance with their terms; or
. perform our obligations under our guarantees.
You also have the right as a holder of the capital securities to bring a
direct action against the Trust if it does not fulfill its obligations under
the declaration in accordance with its terms. For a description of these other
rights, see "Description of Capital Securities."
6
<PAGE>
RISK FACTORS
Your investment in the capital securities will involve certain risks. You
should carefully consider the following discussion of risks, and the other
information included or incorporated by reference in this prospectus, before
deciding whether to participate in the exchange offer. Some of the information
presented in this prospectus, or incorporated by reference in this prospectus
may contain forward-looking statements. You can identify forward-looking
statements by our use of terminology such as "may," "will," "expect,"
"anticipate," "estimate," "continue" or other similar words. Although we
believe that our plans, intentions and expectations reflected in or suggested
by such statements are reasonable, we cannot assure you that such plans,
intentions or expectations will be achieved. Important factors that could cause
actual results to differ materially from the forward-looking statements we make
in this prospectus are set forth in this section and elsewhere in this
prospectus and in the documents incorporated by reference. All forward-looking
statements attributable to us or persons acting on our behalf are expressly
qualified in their entirety by such cautionary statements.
Risk Factors Relating to the Capital Securities
Our obligations under the debentures and the capital securities guarantee are
subordinated.
Our obligations under the debentures are unsecured and will rank junior in
priority of payment to our senior indebtedness. This means that we cannot make
any payments of principal, including redemption payments, or interest, on the
debentures if we default on a payment on our senior indebtedness. In addition,
if the maturity of the debentures is accelerated, then holders of senior
indebtedness will be entitled to be paid in full before we make any payment on
the debentures. In the event of our bankruptcy, termination or dissolution, our
assets would be available to pay obligations under the debentures only after
all payments had been made on our senior indebtedness. At June 30, 1999, the
total amount of our aggregate senior indebtedness was approximately $862.4
million. See "Capitalization" on page 14 and "Use of Proceeds" on page 13.
Our obligations under the capital securities guarantee are unsecured and
rank in priority of payment:
. junior to all of our other liabilities, except those liabilities which,
by their terms, are equal with or junior to the capital securities
guarantee; and
. senior to all of our capital stock now outstanding or issued in the
future, including our common stock, and to any guarantee we issue now or
in the future in respect of our capital stock or the capital stock of
any of our affiliates, including other business trusts like the Trust.
This means that we cannot make any payments on the capital securities guarantee
if we default on a payment of any of our other liabilities, except those
liabilities which are equal with or junior to the capital securities guarantee
by their terms. In the event of bankruptcy, termination or dissolution, our
assets would be available to pay obligations under the capital securities
guarantee only after all payments had been made on our other liabilities,
except those liabilities made equal with or junior to the capital securities
guarantee by their terms.
Neither the debentures nor the capital securities guarantee will limit our
ability or our subsidiaries' abilities to incur additional indebtedness,
including indebtedness that ranks senior in priority of payment to the
debentures and the capital securities guarantee.
For more information, see "Description of Junior Subordinated Debentures--
Subordination of the Debentures" on page 54 and "Description of the Capital
Securities Guarantee--Status of the Capital Securities Guarantee;
Subordination" on page 58.
7
<PAGE>
The ability of the Trust to pay amounts due on the capital securities is
dependent upon our payments on the debentures.
The ability of the Trust to pay distributions on the capital securities, the
redemption price of the capital securities and the liquidation amount of each
capital security is solely dependent upon whether we make the related payments
on the debentures when due. If we default on our obligation to pay principal
(including redemption payments) or interest on the debentures, the Trust will
not have sufficient funds to pay distributions, or the redemption price or the
liquidation amount of each capital security. In those circumstances, you will
not be able to rely upon the capital securities guarantee for payment of these
amounts because the capital securities guarantee covers such payment only when
the Trust has sufficient funds on hand but fails to make such payment.
Instead, you may:
. seek legal redress against us directly or seek other remedies to collect
your pro rata share of payments owed; or
. rely on the property trustee to enforce the Trust's rights under the
debentures.
Holders of capital securities who are subject to the Pennsylvania Corporate
Loans Tax will receive their distributions on the capital securities net of
amounts withheld to pay such tax.
We will be required to withhold the Pennsylvania Corporate Loans Tax from
interest payments on the portion of debentures which are held by the Trust for
the benefit of owners of capital securities who are subject to the tax. These
owners are principally individuals, partnerships and unincorporated
associations resident in Pennsylvania. Any amounts so withheld will reduce, to
the extent of such withholding, distributions payable to such owners of capital
securities. See "Pennsylvania Corporate Loans Tax."
Our ability to defer distributions has tax consequences for you and may affect
the trading price of the capital securities.
So long as no event of default under the debentures has occurred and is
continuing, we may, on one or more occasions, defer interest payments to the
Trust on the debentures as described in this prospectus. See "Description of
Junior Subordinated Debentures--First Commonwealth's Option to Extend Interest
Payment Date" on page 47. If we defer interest payments on the debentures, the
Trust will defer distributions on the capital securities to you during any
deferral period.
If we defer interest payments on the debentures, you will be required to
accrue interest income, as original issue discount in respect of the deferred
stated interest allocable to your share of the capital securities for United
States federal income tax purposes. As a result, you will include such income
in gross income for United States federal income tax purposes prior to the
receipt of any cash distributions. In addition, you will not receive cash from
the Trust related to such income if you dispose of your capital securities
prior to the record date on which distributions of such amounts are made.
We have no current intention of deferring interest payments on the
debentures. However, if we exercise our right to do so in the future, the
capital securities may trade at a price that does not fully reflect the value
of accrued but unpaid interest on the debentures. If you sell the capital
securities during an interest deferral period, you may not receive the same
return on investment as someone else who continues to hold the capital
securities. In addition, the existence of our right to defer payments of
interest on the debentures may mean that the market price for the capital
securities may be more volatile than would otherwise be the case.
See "Federal Income Tax Consequences" beginning on page 64 for more
information regarding United States federal income tax consequences.
8
<PAGE>
Your return on the capital securities may be lower than the return on other
investments if the capital securities are redeemed, and you may be required to
reinvest the redemption proceeds at a lower interest rate.
Subject to receiving prior approval of the Federal Reserve, under certain
circumstances prior to September 1, 2009 and at any time after September 1,
2009, we may redeem the debentures before their maturity. The Trust will use
the cash it receives on any such redemption of the debentures to redeem an
equivalent liquidation amount of the capital securities and the common
securities on a pro rata basis, unless an event of default under the
declaration of trust has occurred and is continuing, in which case the capital
securities will be redeemed before any common securities. If the Trust redeems
your capital securities, there is a risk that the redemption amount paid to you
may be less than the return you could earn on other investments for the same
holding period. If redeemed, your investment in the capital securities may not
reflect the full opportunity cost to you when you take into account factors
that affect the time value of money. Moreover, you should assume that we will
exercise our redemption option when prevailing interest rates at the time are
lower than the interest rate on the debentures, so that the redemption proceeds
generally will not be able to be reinvested in a comparable security at as high
a rate. See "Description of Capital Securities--Redemption of the Junior
Subordinated Debentures" on page 33 for more information.
Distribution of debentures may have a possible adverse effect on trading price.
We have the right to dissolve the Trust at any time if such dissolution and
any distribution of the debentures would not result in a taxable event to the
holders of the capital securities. If we dissolve the Trust, the Trust will be
liquidated by distribution of the debentures to holders of the capital
securities and the common securities. Under current United States federal
income tax laws, a distribution of debentures to you on the dissolution of the
Trust would not be a taxable event to you.
We cannot predict the market prices for the debentures that may be
distributed. Accordingly, the debentures that you receive on a distribution, or
the capital securities you hold pending such a distribution, may trade at a
discount to the price that you paid to purchase the capital securities.
Because you may receive debentures under these circumstances, you should
make an investment decision with regard to the debentures in addition to the
capital securities. You should carefully review all the information regarding
the debentures contained in this prospectus. See "Federal Income Tax
Consequences--Receipt of Debentures or Cash Upon Liquidation of the Trust" on
page 65 for more information.
You will have limited voting rights.
In general, unless an event of default under the declaration has occurred
and is continuing, only we may elect or remove any of the trustees, and in no
event may holders of the capital securities remove the administrative trustees.
See "The Trust" on page 17 and "Description of Capital Securities--Limited
Voting Rights of Capital Security Holders; Modification and Amendment of the
Declaration" on page 38 for more information.
Enforcement of certain rights, including the right to payment, by you or on
your behalf is limited.
Holders of capital securities will not be able, in most cases, to exercise
directly remedies available to the holders of the debentures or to assert any
other rights in respect of the debentures. The Chase Manhattan Bank acts as the
guarantee trustee under the capital securities guarantee. Its ability to take
action on your behalf as guarantee trustee is limited. This is because our
capital securities guarantee guarantees distributions on the capital securities
only to the extent the Trust receives payments on the debentures and, upon
liquidation of the Trust, other assets to which holders of the capital
securities are entitled. See "Description of Junior Subordinated Debentures--
Enforcement of Certain Rights by Holders of Capital Securities" on page 52, "--
Debenture Events of Default" on page 52 and "Description of the Capital
Securities Guarantee" on page 57.
9
<PAGE>
The capital securities are not insured.
Neither the Federal Deposit Insurance Corporation nor any other governmental
agency or other person has insured the capital securities or any other of the
other securities offered by this prospectus.
Holders of capital securities will not be protected from our participation in
potentially highly leveraged transactions.
The indenture provides that we may merge or consolidate with, or sell all or
substantially all of our assets to another person or entity so long as the
successor person or entity expressly assumes our obligations under the
indenture, there is no event of default under the indenture and certain other
conditions are met. The indenture provisions do not afford holders of the
debentures protection in the event of a highly leveraged or other transaction
involving us that may adversely affect holders of the debentures.
There is no public market for the capital securities.
There is no public market for the original capital securities and there can
be no assurance as to the liquidity of any markets that may develop for the
exchange capital securities. We do not intend to apply for listing of the
exchange capital securities on any national securities exchange or for
quotation through the Nasdaq National Market. The lack of an existing market
may limit your ability to sell the capital securities and will affect the price
you receive. Future trading prices of the capital securities will depend on
many factors, including, among other things, prevailing interest rates, our
operating results, and the market for similar securities.
There is no public market for the debentures.
There is no existing market for the debentures, and the lack of an existing
market may limit your ability to sell the debentures and will affect the price
you receive. Future trading prices of the debentures will depend on many
factors, including, among other things, prevailing interest rates, our
operating results and the market for similar securities. We do not intend to
apply for listing of the exchange debentures on any national securities
exchange or for quotation through the Nasdaq National Market.
Risk Factors Relating to First Commonwealth Financial Corporation
Because we are a bank holding company, we may have limited sources of funds.
Because we are a bank holding company, our operations are conducted by our
subsidiaries, including First Commonwealth Bank and Southwest Bank, which are
subject to significant federal and state regulation. As a result, our ability
to receive dividends and loans from our subsidiaries is restricted. At January
1, 1999, $56.2 million of the retained earnings of First Commonwealth Bank and
Southwest Bank were available to pay dividends to us without regulatory
approval. Dividend payments by First Commonwealth Bank and Southwest Bank to us
in the future will require generation of future earnings by First Commonwealth
Bank and Southwest Bank and may require regulatory approval. Further, our right
to participate in the distribution of the assets of any bank subsidiary upon
its liquidation, reorganization or otherwise, and the resulting ability of the
holders of the capital securities to benefit indirectly from any participation,
will be subject to the claims of the bank subsidiaries' creditors, which will
take priority except to the extent to which we may be a creditor with a
reorganized claim. Accordingly, the debentures will be subordinated to all
existing and future liabilities of our subsidiaries, including the deposit
liabilities of First Commonwealth Bank and Southwest Bank, and you should look
only to our assets for payments on the debentures. As of June 30, 1999, our
subsidiaries had deposits and other liabilities of approximately $3.9 billion.
10
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC"). You may
read and copy any document we file at the SEC's Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. For further information on the
Public Reference Rooms, please call the SEC at 1-800-SEC-0330. Our SEC filings
are also available to the public from the SEC's web site at http://www.sec.gov.
We incorporate by reference into this prospectus the documents listed below
and any future filings (including filings made after the date of this
prospectus but prior to the termination of this offering) we make with the SEC
under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
. Our Annual Report on Form 10-K for the year ended December 31, 1998;
. Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999; and
. Our Current Report on Form 8-K dated December 31, 1998 (filed January
15, 1999), as amended by a Form 8-K/A filed March 16, 1999.
. Our Current Report on Form 8-K dated September 8, 1999 (filed September
23, 1999).
You may obtain a copy of these filings, at no cost, by writing or
telephoning us at:
First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
(724) 349-7220
To obtain timely delivery, security holders must request the information by
1999.
Any statement contained in this prospectus or in a document incorporated or
deemed to be incorporated by reference in this prospectus shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or a document incorporated by reference
into this prospectus, or in any other subsequently filed document that also is
or is deemed to be incorporated herein or therein by reference, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this prospectus except as so modified or
superseded.
No separate financial statements of the Trust have been included in this
prospectus. Neither we nor the Trust consider that such financial statements
would be material to holders of the capital securities because (i) we own all
of the voting securities of the Trust, directly or indirectly, and we are a
reporting company under the Exchange Act, (ii) the Trust has no independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in debentures we issue and (iii) our obligations described
herein to provide certain indemnities in respect of, and be responsible for,
certain costs, expenses, debts and liabilities of the Trust under the indenture
described herein and any supplemental indenture thereto and pursuant to the
declaration of the Trust, the capital securities guarantee issued with respect
to capital securities issued by the Trust, the debentures purchased by the
Trust and the related indenture, taken together, constitute a full and
unconditional guarantee of payments due on the capital securities as described
herein. See "Description of Junior Subordinated Debentures" and "Description of
the Capital Securities Guarantee." In addition, we do not expect that the Trust
will file reports, proxy statements and other information under the Exchange
Act with the SEC.
11
<PAGE>
FIRST COMMONWEALTH
General
First Commonwealth was incorporated as a Pennsylvania business corporation
on November 15, 1982 and is registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended. First Commonwealth and its
subsidiaries employ approximately 1,500 people.
First Commonwealth operates two chartered banks, First Commonwealth Bank and
Southwest Bank. Personal financial planning and other financial services and
insurance products are also provided through First Commonwealth Trust Company
and First Commonwealth Insurance Agency. First Commonwealth also operates
Commonwealth Systems Corporation, a data processing subsidiary. First
Commonwealth Bank, a Pennsylvania-chartered federally insured commercial bank
headquartered in Indiana, Pennsylvania operates through divisions doing
business under the following names: NBOC Bank, Deposit Bank, Cenwest Bank,
First Bank of Leechburg, Peoples Bank, Central Bank, Peoples Bank of Western
Pennsylvania, Unitas Bank and Reliable Bank.
On December 31, 1998, First Commonwealth merged with Southwest National
Corporation , a Pennsylvania-chartered bank holding company headquartered in
Greensburg, Pennsylvania. Upon merger, Southwest National Bank, which had been
a subsidiary of Southwest National Corporation, became a subsidiary of First
Commonwealth. In addition, Southwest National Bank changed its name to
Southwest Bank. Southwest Bank is a Pennsylvania-chartered, federally insured
commercial bank also headquartered in Greensburg, Pennsylvania, which traces
its origin to 1900.
Through First Commonwealth Bank, First Commonwealth traces its banking
origins to 1866. First Commonwealth Bank and Southwest Bank conduct business
through 96 community banking offices. First Commonwealth Bank and Southwest
Bank engage in general banking business and offer a full range of financial
services including such general retail banking services as demand, savings and
time deposits and mortgage, consumer installment and commercial loans.
First Commonwealth Bank and Southwest Bank operate a network of 79 automated
teller machines that permit customers to conduct routine banking transactions
24 hours a day. Of the automated teller machines, 60 are located on the
premises of their main or branch offices and 19 are in remote locations. All
the automated teller machines are part of the MAC network, which consists of
over 23,000 automated teller machines owned by numerous banks, savings and loan
associations and credit unions located throughout 45 states. The automated
teller system is also part of the global MasterCard/Cirrus network which is
comprised of more than 300,000 automated teller machines located in the United
States, Canada and 58 other countries and territories, which services over 365
million card holders. Such networks allow First Commonwealth Bank's and
Southwest Bank's customers to withdraw cash and in certain cases conduct other
banking transactions from automated teller machines of all participating
financial institutions.
In addition to funds access through the use of automated teller machines,
the MAC debit card offered to First Commonwealth Bank's and Southwest Bank's
deposit customers may be used at 300,000 point of sale terminals on the MAC
system as well as being used on the global MasterCard system for the purchase
of goods and services. The MAC debit card provides customers with the almost
universal acceptability of a credit card combined with the convenience of
direct debit to the customers' checking account.
As a registered bank holding company, First Commonwealth is required to file
with the Federal Reserve Board an annual report and other information. The
Federal Reserve Board also has the right to make examinations and inspections
of First Commonwealth and its subsidiaries.
The principal executive offices of First Commonwealth are located at 22
North Sixth Street, Indiana, Pennsylvania 15701, and its telephone number is
(724) 349-7220.
12
<PAGE>
Recent Events
On July 13, 1999, First Commonwealth announced that the Board of Directors
authorized a repurchase of up to 2,000,000 shares of its outstanding common
stock. On August 31, 1999, First Commonwealth commenced a "modified Dutch
auction" tender offer to purchase up to 2,000,000 shares of its outstanding
common stock. It offered to purchase each share in the tender offer at a price
of not less than $23.00 nor in excess of $26.00 per share, net to the seller.
The offer expired on September 29, 1999. First Commonwealth repurchased
1,909,710 shares of its common stock in the offer at a purchase price of $26.00
per share, net to the seller. The aggregate amount paid by First Commonwealth
in connection with the repurchase was $49,652,460. The repurchase reduced the
number of First Commonwealth's outstanding shares of common stock by
approximately 6.1%.
USE OF PROCEEDS
Neither we nor the Trust will receive any cash proceeds from the issuance of
the exchange capital securities. The original capital securities surrendered in
exchange for the exchange capital securities will be retired and canceled. The
net proceeds to the Trust from the offering of the original capital securities
were approximately $34,225,000 after deducting commissions and expenses of the
offering. All of the proceeds from the sale of original capital securities were
invested by the Trust in the debentures. We used the proceeds from the issuance
of the debentures to finance the purchase of shares of our common stock
pursuant to the tender offer described above. See "First Commonwealth--Recent
Events."
The capital securities qualify as Tier 1 Capital under the capital
guidelines of the Federal Reserve, provided that under current Federal Reserve
guidelines no more than 25% of First Commonwealth's Tier 1 Capital may be
composed of such securities. The capital securities constitute 10.24% of First
Commonwealth Tier 1 Capital as of June 30, 1999.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the First Commonwealth's consolidated ratios of earnings
to fixed charges for each of the periods indicated:
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------- Six Months Ended
1994 1995 1996 1997 1998 June 30, 1999
----- ----- ----- ----- ----- ----------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (1)................... 1.64 1.49 1.49 1.46 1.31 1.50
</TABLE>
- --------
(1) The ratio of earnings to combined fixed charges and preferred stock
dividends for the identified periods are the same as to the ratios of
earnings to fixed charges in the table because the Company had no issued
and outstanding preferred stock in any of such periods.
For the purpose of computing the ratio of earnings to fixed charges,
earnings represent net income before extraordinary items plus applicable income
taxes and fixed charges. Fixed charges include gross interest expense and the
portion of rent expense deemed representative of the interest factor.
13
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust is treated as our subsidiary
and, accordingly, the accounts of the Trust are included in our consolidated
financial statements. The exchange capital securities will be shown as a
liability in our consolidated balance sheets as "Company obligated mandatorily
redeemable capital securities of subsidiary trust," and appropriate disclosures
about the exchange capital securities, the exchange guarantee and the exchange
debentures will be included in the notes to our consolidated financial
statements. For financial reporting purposes, distributions payable on the
exchange capital securities will be recorded as interest expense in our
consolidated statement of income.
CAPITALIZATION
The following table sets forth the actual capitalization of First
Commonwealth at June 30, 1999, and on an as adjusted basis to give effect to
the consummation of the offering of the original capital securities, the
issuance of the original debentures and the consummation of the tender offer
described above and the application of the proceeds as described under "Use of
Proceeds." The table should be read in conjunction with the consolidated
financial statements of First Commonwealth, including the related notes,
included in the documents incorporated herein by reference. See "Selected
Consolidated Financial Data of First Commonwealth" and "Where You Can Find More
Information."
<TABLE>
<CAPTION>
June 30, 1999
-----------------------
Actual As Adjusted
---------- -----------
(Dollars in Thousands)
<S> <C> <C>
Deposits............................................... $2,965,133 $2,965,133
Short-term borrowings.................................. 223,831 223,831
Long-term debt......................................... 638,525 653,177
---------- ----------
Total deposits and borrowings.......................... 3,827,489 3,842,141
---------- ----------
Other liabilities...................................... 36,534 36,534
---------- ----------
Corporation obligated, mandatorily redeemable
securities of subsidiary trust(1)..................... 0 35,000
---------- ----------
Shareholders' Equity:
Preferred stock, par value $1 per share:
3,000,000 shares authorized, none issued............. 0 0
Common stock, par value $1 per share:
100,000,000 shares authorized; 31,262,706 shares
issued.............................................. 31,263 31,263
Additional paid-in capital............................. 99,716 99,716
Retained earnings...................................... 247,283 247,283
Accumulated other comprehensive income (loss).......... (26,715) (26,715)
Treasury stock, at cost................................ (5,213) (54,865)
Unearned ESOP shares................................... (7,154) (7,154)
---------- ----------
Total shareholders' equity............................. 339,180 289,528
---------- ----------
Total liabilities and shareholders' equity............. $4,203,203 $4,203,203
========== ==========
Tier 1 Risk Based Capital Ratio........................ 14.2% 13.6%
Leverage Ratio......................................... 8.4% 8.1%
</TABLE>
- --------
(1) Reflects the original capital securities at their issue price. As described
herein, the sole assets of the Trust, which is a subsidiary of First
Commonwealth, are $36,083,000 aggregate principal amount of the debentures,
including the amounts attributable to the issuance of the common securities
of the Trust, which will mature on September 1, 2029. First Commonwealth
owns all of the common securities issued by the Trust.
14
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF FIRST COMMONWEALTH
(Dollars in Thousands, Except Per Share Data)
The selected consolidated financial data of First Commonwealth set forth
below should be read in conjunction with, and is qualified in its entirety by,
the management's discussion and analysis of our results of operations and our
consolidated financial statements including the related notes, included in the
documents incorporated herein by reference. Interim unaudited data for the six
months ended June 30, 1999 and 1998 reflect, in the opinion of our management,
all adjustments, consisting only of normal recurring adjustments, necessary for
a fair presentation of such data. Results for the year ended December 31, 1998
and the six months ended June 30, 1999 are not necessarily indicative of
results which may be expected for any future interim period or for the 1999
year as a whole. See "Where You Can Find More Information."
Results for the six-month period ended June 30, 1999, as adjusted, reflect
the effects of:
. the repurchase by First Commonwealth on October 5, 1999 of 1,909,710
shares, as part of the modified Dutch auction tender offer described
in "First Commonwealth--Recent Events"; and
. the Trust's issuance of the original capital securities and First
Commonwealth's issuance of the original debentures;
as if both events occurred as of January 1, 1999.
15
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF FIRST COMMONWEALTH (continued)
(Dollars in Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
Six Months Ended Six Months
Years Ended December 31, June 30, Ended June 30,
--------------------------------------------------------------- ------------------------ 1999,
1994 1995 1996 1997 1998 1998 1999 As Adjusted
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Statement of Income
Data
Interest income.... $ 207,368 $ 227,182 $ 235,188 $ 254,772 $ 283,421 $ 140,466 $ 145,437 $ 145,437
Interest expense... 86,133 103,019 109,189 124,427 148,282 73,224 73,729 75,937
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net interest
income........... 121,235 124,163 125,999 130,345 135,139 67,242 71,708 69,500
Provision for
credit losses..... 4,456 5,575 6,301 10,152 15,049 5,100 4,550 4,550
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net interest
income after
provision for
credit losses.... 116,779 118,588 119,698 120,193 120,090 62,142 67,158 64,950
Securities gains
(losses).......... 5,536 (603) 1,599 6,825 1,457 982 563 563
Other operating
income............ 15,468 15,996 17,359 18,716 24,881 10,889 17,263 17,263
Merger and related
charges........... 0 0 0 0 7,915 0 0 0
Other operating
expenses.......... 82,680 83,689 85,299 88,857 92,286 45,773 47,681 47,681
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Income before
taxes and
extraordinary
items............ 55,103 50,292 53,357 56,877 46,227 28,240 37,303 35,095
Applicable income
taxes............. 17,761 15,728 16,164 17,338 12,229 7,764 10,472 9,699
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income before
extraordinary
items............ 37,342 34,564 37,193 39,539 33,998 20,476 26,831 25,396
Extraordinary items
(less applicable
taxes of $336).... 0 0 0 0 (624) 0 0 0
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income......... $ 37,342 $ 34,564 $ 37,193 $ 39,539 $ 33,374 $ 20,476 $ 26,831 $ 25,396
=========== =========== =========== =========== =========== =========== =========== ===========
Per Share Data
Net income before
extraordinary
items............ $ 1.18 $ 1.11 $ 1.19 $ 1.28 $ 1.11 $ 0.67 $ 0.88 $ 0.89
Extraordinary
items............ 0.00 0.00 0.00 0.00 (0.02) $ 0.00 $ 0.00 $ 0.00
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income........ $ 1.18 $ 1.11 $ 1.19 $ 1.28 $ 1.09 $ 0.67 $ 0.88 0.89
=========== =========== =========== =========== =========== =========== =========== ===========
Dividends
declared......... $ 0.58 $ 0.66 $ 0.74 $ 0.82 $ 0.89 $ 0.44 $ 0.49 $ 0.49
Average shares
outstanding...... 31,689,718 31,236,202 31,155,043 30,835,949 30,666,786 30,788,301 30,589,094 28,679,384
Per Share Data
Assuming Dilution
Net income before
extraordinary
items............ $ 1.18 $ 1.10 $ 1.19 $ 1.28 $ 1.10 $ 0.66 $ 0.87 $ 0.88
Extraordinary
items............ 0.00 0.00 0.00 0.00 (0.02) $ 0.00 $ 0.00 0.00
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income........ $ 1.18 $ 1.10 $ 1.19 $ 1.28 $ 1.08 $ 0.66 $ 0.87 0.88
=========== =========== =========== =========== =========== =========== =========== ===========
Dividends
declared......... $ 0.58 $ 0.66 $ 0.74 $ 0.82 $ 0.89 $ 0.44 $ 0.49 $ 0.49
Average shares
outstanding...... 31,763,564 31,281,960 31,190,895 30,922,837 30,833,013 30,981,004 30,702,299 28,792,589
At End of Period
Total assets...... $ 3,020,204 $ 3,075,123 $ 3,339,996 $ 3,668,557 $ 4,096,789 $ 4,044,242 $ 4,203,203 $ 4,203,203
Investment
securities....... 1,018,228 960,588 901,411 1,015,798 1,525,332 1,336,532 1,614,569 1,614,569
Loans and leases,
net of unearned
income........... 1,790,684 1,935,938 2,236,523 2,436,337 2,374,850 2,467,764 2,369,905 2,369,905
Allowance for
credit losses.... 22,375 23,803 25,234 25,932 32,304 26,886 33,644 33,644
Deposits.......... 2,493,135 2,586,545 2,756,111 2,884,343 2,931,131 2,925,091 2,965,133 2,965,133
Corporation
obligated,
mandatorily
redeemable
capital
securities of
subsidiary
trust............ 0 0 0 0 0 0 0 35,000
Other long-term
debt............. 9,549 7,168 52,737 193,054 630,850 473,253 638,525 653,177
Total Long-Term
Debt............. 9,549 7,168 52,737 193,054 630,850 473,253 638,525 688,177
Shareholders'
equity........... 293,237 329,486 341,522 354,323 355,405 363,187 339,180 289,528
Key Ratios
Return on average
assets........... 1.25% 1.14% 1.17% 1.15% 0.85% 1.07% 1.29% 1.22%
Return on average
equity........... 12.61% 11.02% 11.07% 11.31% 9.13% 11.41% 14.95% 16.40%
Net loans to
deposit ratio.... 70.93% 73.93% 80.23% 83.57% 79.92% 83.45% 78.79% 78.79%
Dividends per
share as a
percent of net
income per
share............ 49.15% 59.46% 62.18% 64.06% 81.65% 65.67% 55.68% 55.06%
Average equity to
average assets
ratio............ 9.93% 10.38% 10.53% 10.16% 9.28% 9.34% 8.65% 7.47%
Allowance for loan
losses to total
loans............ 1.25% 1.23% 1.13% 1.06% 1.36% 1.09% 1.42% 1.42%
Non-performing
assets to total
loans plus other
real estate...... 1.21% 1.06% 1.14% 1.12% 1.17% 1.09% 1.02% 1.02%
</TABLE>
16
<PAGE>
THE TRUST
The Trust is a statutory business trust formed under Delaware law on August
16, 1999.
The Trust exists for the exclusive purposes of:
. issuing and selling capital securities and common securities, which
represent undivided beneficial interests in the assets of the Trust;
. investing the gross proceeds from the sale of capital securities and
common securities in the debentures; and
. engaging in other activities necessary, advisable or incidental to the
foregoing.
Our debentures are the sole assets of the Trust and payments under the
debentures are the sole revenues of the Trust. All of the common securities are
owned directly by First Commonwealth. The common securities rank equal to, and
payments will be made on them pro rata with the capital securities, except that
upon the occurrence and during the continuance of an event of default under the
declaration the rights of First Commonwealth as holder of the common securities
to payments in respect of distributions and payments upon liquidation,
redemption or otherwise will be subordinated and rank junior to the rights of
the holders of the capital securities. See "Description of Capital Securities--
Subordination of Common Securities." First Commonwealth has acquired common
securities in a liquidation amount equal to at least 3% of the total capital of
the Trust. The Trust has a term of 31 years, but may terminate earlier as
provided in the declaration.
The Trust's business and affairs are conducted by trustees appointed by
First Commonwealth as the direct holder of the common securities. The trustees
are The Chase Manhattan Bank as the property trustee, Chase Manhattan Bank
Delaware as the Delaware trustee and three individual administrative trustees.
The property trustee, the Delaware trustee and the administrative trustees are
sometimes referred to in this prospectus collectively as the "issuer trustees."
The Chase Manhattan Bank, as property trustee, acts as sole indenture trustee
under the declaration. The Chase Manhattan Bank also acts as indenture trustee
under the capital securities guarantee and the indenture. See "Description of
the Capital Securities Guarantee" and "Description of Junior Subordinated
Debentures."
The holder of the common securities or, if an event of default under the
declaration has occurred and is continuing, the holders of not less than a
majority in liquidation amount of the capital securities, are entitled to
appoint, remove or replace the property trustee and/or the Delaware trustee.
The holders of the capital securities will not have the right to vote to
appoint, remove or replace the administrative trustees; such voting rights are
vested exclusively in the holder of the common securities. The duties and
obligations of each trustee are governed by the declaration.
First Commonwealth will pay all fees, expenses, debts and obligations (other
than the common securities and the capital securities) related to the Trust and
the exchange offer, including all ongoing costs, expenses and liabilities of
the Trust.
The principal executive offices of the Trust are located at First
Commonwealth Capital Trust I, c/o First Commonwealth Financial Corporation, 22
North Sixth Street, Indiana, Pennsylvania 15701, Attention: John J. Dolan,
Chief Financial Officer.
17
<PAGE>
THE EXCHANGE OFFER
Purpose and Effect of the Exchange Offer
In connection with the sale of the original capital securities, First
Commonwealth and the Trust entered into a registration rights agreement with
the initial purchaser, under which First Commonwealth and the Trust agreed to
file and to use their reasonable best efforts to cause to be declared effective
by the SEC a registration statement with respect to the exchange of the
original capital securities for exchange capital securities with terms
identical in all material respects to the terms of the original capital
securities. A copy of the registration rights agreement has been filed as an
exhibit to the registration statement of which this prospectus is a part.
The form and terms of the exchange capital securities are the same as the
form and terms of the original capital securities, except that the exchange
capital securities have been registered under the Securities Act and therefore
will not be subject to certain restrictions on transfer under federal and state
securities laws. In addition, the exchange capital securities will not provide
for any increase in the distribution rate. In that regard, the original capital
securities provide, among other things, that, if a registration statement
relating to the exchange offer has not been filed by February 7, 2000 and
declared effective by March 6, 2000, the distribution rate borne by the
original capital securities will increase by 0.25% per annum until the exchange
offer is consummated. Upon consummation of the exchange offer, holders of
original capital securities will not be entitled to any increase in the
distribution rate thereon or any further registration rights under the
registration rights agreement.
The exchange offer is not being made to, nor will we or the Trust accept
tenders for exchange from, holders of original capital securities in any
jurisdiction in which the exchange offer or the acceptance thereof would not be
in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the
exchange offer means any person in whose name the original capital securities
are registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any participant in
The Depository Trust Company system whose name appears on a security position
listing as the holder of such original capital securities and who desires to
deliver such original capital securities by book-entry transfer at The
Depository Trust Company. In addition, the term "person" shall refer to a
natural person or any legally existing entity.
Pursuant to the exchange offer, we will exchange as soon as practicable
after the date hereof, the original guarantee for the exchange guarantee and
the original debentures, in an amount corresponding to the original capital
securities accepted for exchange, for a like aggregate principal amount of the
exchange debentures. The exchange guarantee and the exchange debentures have
been registered under the Securities Act.
Terms of the Exchange Offer
We and the Trust hereby offer, upon the terms and subject to the conditions
set forth in this prospectus and in the accompanying letter of transmittal, to
exchange up to $35,000,000 aggregate liquidation amount of exchange capital
securities for a like aggregate liquidation amount of original capital
securities properly tendered on or before the expiration date and not properly
withdrawn in accordance with the procedures described below. The Trust will
issue, promptly after the expiration date, an aggregate liquidation amount of
up to $35,000,000 of exchange capital securities in exchange for a like
aggregate liquidation amount of outstanding original capital securities
tendered and accepted in connection with the exchange offer. Holders may tender
their original capital securities in whole or in part in a liquidation amount
of not less than $100,000 or any integral multiple of $1,000 liquidation amount
in excess thereof; provided, however, that if any original capital securities
are tendered for exchange in part, the untendered liquidation amount of such
original capital securities must be $100,000 or any integral multiple of $1,000
in excess thereof.
18
<PAGE>
The exchange offer is not conditioned upon any minimum liquidation amount of
original capital securities being tendered. As of the date of this prospectus,
$35,000,000 aggregate liquidation amount of the original capital securities is
outstanding.
Holders of original capital securities do not have any appraisal or
dissenters' rights in connection with the exchange offer. Original capital
securities which are not tendered, or are tendered but not accepted, in
connection with the exchange offer will remain outstanding and be entitled to
the benefits of the declaration of trust, but will not be entitled to any
further registration rights under the registration rights agreement.
If any tendered original capital securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
under "Conditions to the Exchange Offer" or otherwise, certificates for any
such unaccepted original capital securities will be returned, without expense,
to the tendering holder thereof promptly after the expiration date.
Holders who tender original capital securities in connection with the
exchange offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the letter of transmittal, transfer taxes with
respect to the exchange of original capital securities in connection with the
exchange offer. We will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. See
"--Fees and Expenses."
While we have no present plan to acquire or file a registration statement
for any original capital securities that holders do not tender in this exchange
offer, we reserve the right to purchase or make offers for any original capital
securities that remain outstanding after the offer expires or after we
terminate it. We may do this in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or offers, including
the consideration offered and paid, could differ from the terms of this
exchange offer.
Expiration Date; Extensions; Amendments
The expiration date is 5:00 p.m., New York City time, on , 1999,
unless we or the Trust extend the exchange offer, in which case the expiration
date will be the latest date and time to which the exchange offer is extended.
We and the Trust expressly reserve the right, in our sole and absolute
discretion, subject to applicable law, at any time and from time to time, to:
. delay the acceptance of the original capital securities for exchange;
. terminate the exchange offer, whether or not any original capital
securities have been accepted for exchange, if we determine that any of
the events or conditions referred to under "--Conditions to the Exchange
Offer" have occurred or exist;
. extend the expiration date of the exchange offer and retain all original
capital securities tendered in the exchange offer, subject, however, to
the right of holders of original capital securities to withdraw their
tendered original capital securities as described under "--Withdrawal
Rights;" and
. waive any condition or otherwise amend the terms of the exchange offer
in any respect.
If the exchange offer is amended in a manner that we or the Trust determine
to constitute a material change, or if we waive a material condition of the
exchange offer, we will promptly disclose such amendment
19
<PAGE>
by means of a prospectus supplement that will be distributed to the registered
holders of the original capital securities, and we will extend the exchange
offer to the extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice to the exchange agent and by making
a public announcement, and such announcement in the case of an extension will
be made no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled expiration date. Without limiting the manner in
which we and the Trust may choose to make any public announcement and subject
to applicable law, neither we nor the Trust shall have any obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to an appropriate news agency.
Acceptance for Exchange and Issuance of Exchange Capital Securities
Upon the terms and subject to the conditions of the exchange offer, the
Trust will exchange, and will issue to the exchange agent, exchange capital
securities for original capital securities validly tendered and not withdrawn
promptly after the expiration date.
In all cases, delivery of exchange capital securities in exchange for
original capital securities tendered and accepted for exchange pursuant to the
exchange offer will be made only after timely receipt by the exchange agent of:
. original capital securities or a book-entry confirmation of a book-entry
transfer of original capital securities into the exchange agent's
account at The Depository Trust Company, including an agent's message if
the tendering holder has not delivered a letter of transmittal;
. the letter of transmittal, or a facsimile, properly completed and duly
executed, with any required signature guarantees, or, in the case of a
book-entry transfer, an agent's message; and
. any other documents required by the letter of transmittal.
The term "book-entry confirmation" means a timely confirmation of a book-
entry transfer of original capital securities into the exchange agent's account
at The Depository Trust Company. The term "agent's message" means a message,
transmitted by The Depository Trust Company and received by the exchange agent
and forming a part of a book-entry confirmation, which states that The
Depository Trust Company has received an express acknowledgment from the
tendering participant which states that such participant has received and
agrees to be bound by the letter of transmittal and that we and the Trust may
enforce such letter of transmittal against such participant.
Subject to the terms and conditions of the exchange offer, we and the Trust
will be deemed to have accepted for exchange, and thereby exchanged, original
capital securities validly tendered and not withdrawn as, if and when the Trust
gives oral or written notice to the exchange agent of the acceptance by us and
the Trust of such original capital securities for exchange in the exchange
offer. The exchange agent will act as agent for the Trust for the purpose of
receiving tenders of original capital securities, letters of transmittal and
related documents, and as agent for tendering holders for the purpose of
receiving original capital securities, letters of transmittal and related
documents and transmitting exchange capital securities to validly tendering
holders. Such exchange will be made promptly after the expiration date. If, for
any reason, acceptance for exchange or the exchange of any original capital
securities tendered pursuant to the exchange offer is delayed, whether before
or after the Trust's acceptance for exchange of original capital securities, or
we and the Trust extend the exchange offer or are unable to accept for exchange
or exchange original capital securities tendered in the exchange offer, then,
without prejudice to our rights and the Trust's rights set forth herein, the
exchange agent may, nevertheless, on our behalf and on behalf of the Trust, and
subject to Rule 14e-1(c) under the Exchange Act, retain tendered original
capital securities. Such original capital securities may not be withdrawn
except to the extent tendering holders are entitled to withdrawal rights as
described under "--Withdrawal Rights."
20
<PAGE>
Pursuant to the letter of transmittal or agent's message, a holder of
original capital securities will warrant and agree in the letter of transmittal
that it has full power and authority to tender, exchange, sell, assign and
transfer original capital securities, that the Trust will acquire good,
marketable and unencumbered title to the tendered original capital securities,
free and clear of all liens, restrictions, charges and encumbrances, and the
original capital securities tendered for exchange are not subject to any
adverse claims or proxies. The holder also will warrant and agree that it will,
upon request, execute and deliver any additional documents we, the Trust or the
exchange agent deem necessary or desirable to complete the exchange, sale,
assignment and transfer of the original capital securities tendered pursuant to
the exchange offer.
Procedures for Tendering Original Capital Securities
Valid Tender
Except as set forth below, in order to validly tender original capital
securities in the exchange offer, you must properly complete and duly execute a
letter of transmittal, or facsimile of such letter, with any required signature
guarantees, or, in the case of a book-entry transfer, an agent's message and
any other required documents, and such letter or agent's message must be
received by the exchange agent at one of its addresses set forth under "--
Exchange Agent." In addition, you must do one of the following:
. you must tender original capital securities to the exchange agent, and
the exchange agent must receive the securities;
. you must tender such original capital securities according to the
procedures for book-entry transfer set forth below and a book-entry
confirmation, including an agent's message if you have not delivered a
letter of transmittal, must be received by the exchange agent, in each
case on or before the expiration date; or
. you must comply with the guaranteed delivery procedures set forth below.
If less than all of your original capital securities are tendered, you
should fill in the amount of original capital securities being tendered in the
appropriate box on the letter of transmittal, or so indicate in an agent's
message. The untendered liquidation amount of the original capital securities
must be $100,000 or any integral multiple of $1,000 in excess thereof. We will
deem the entire amount of original capital securities delivered to the exchange
agent to have been tendered, unless you otherwise indicate.
The method of delivery of certificates, the letter of transmittal and all
other required documents are at your risk, and we will deem delivery as made
only when actually received by the exchange agent. If delivery is by mail, we
recommend registered mail, return-receipt requested, properly insured, or an
overnight delivery service. In all cases, you should allow sufficient time to
ensure a timely delivery. Holders must not send a letter of transmittal or
original capital securities to us or to the Trust. Holders may ask their
respective brokers, dealers, commercial banks, trust companies or nominees to
complete the transaction for them.
Book-Entry Transfer
The exchange agent will establish an account with respect to the original
capital securities at The Depository Trust Company for purposes of the exchange
offer, as described under "Description of Capital Securities--Semi-Annual
Distributions on the Capital Securities," within two business days after the
date of this prospectus. Any financial institution that is a participant in The
Depository Trust Company's book-entry transfer facility system may make a book-
entry delivery of the original capital securities by causing The Depository
Trust Company to transfer such original capital securities into the exchange
agent's account at The Depository Trust Company in accordance with its
procedures for transfers. However, although you may deliver original capital
securities through book-entry transfer into the exchange agent's account at The
Depository Trust Company, you must properly complete, duly execute and deliver
the letter of transmittal, or facsimile of
21
<PAGE>
such letter, with any required signature guarantees, or an agent's message, and
any other required documents, to the exchange agent at its address set forth
under "--Exchange Agent" on or before the expiration date, or you must comply
with the guaranteed delivery procedure set forth below.
Delivery of documents to The Depository Trust Company in accordance with its
procedures does not constitute delivery to the exchange agent.
Signature Guarantees
If a certificate for the original capital securities is registered in a name
other than yours or you complete the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the letter of transmittal,
such certificate must be endorsed or accompanied by a properly executed bond
power, with the respective endorsement or signature guaranteed by a firm or
other entity identified in Rule 17Ad-15 under the Exchange Act as an "eligible
guarantor institution," including, as such terms are defined in this Rule:
. a bank;
. a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer;
. a credit union;
. a national securities exchange, registered securities association or
clearing agency; or
. an "eligible institution," which is a savings association that is a
participant in a Securities Transfer Association, unless surrendered on
behalf of such eligible institution. See Instruction 1 to the letter of
transmittal.
Guaranteed Delivery
If you desire to tender original capital securities in the exchange offer
and the certificates for your original capital securities are not immediately
available or time will not permit all required documents to reach the exchange
agent on or before the expiration date, or you cannot complete the procedure
for book-entry transfer on a timely basis, your original capital securities may
nevertheless be tendered so long as you comply with all of the following
guaranteed delivery procedures:
. you tender by or through an eligible institution;
. you properly complete and duly execute a notice of guaranteed delivery,
substantially in the form accompanying the letter of transmittal, and
the notice is received by the exchange agent, as provided below, on or
before the expiration date; and
. the certificates, or a book-entry confirmation representing all tendered
original capital securities, in proper form for transfer, together with
a properly completed and duly executed letter of transmittal, or a
facsimile of such letter, or agent's message with any required signature
guarantees and any other documents required by the letter of
transmittal, are received by the exchange agent within three New York
Stock Exchange trading days after the date of execution of such notice
of guaranteed delivery.
The notice of guaranteed delivery may be delivered by hand, or transmitted
by facsimile or mail to the exchange agent and must include a guarantee by an
eligible institution in the form set forth in such notice.
The delivery of exchange capital securities in exchange for original capital
securities tendered and accepted for exchange pursuant to the exchange offer
will in all cases be made only after timely receipt by the exchange agent of
original capital securities, or of a book-entry confirmation with respect to
such original capital securities, and a properly completed and duly executed
letter of transmittal, or facsimile of such letter, or agent's message together
with any required signature guarantees and any other documents required by the
letter of transmittal. Accordingly, the delivery of exchange capital securities
might not be made to all tendering
22
<PAGE>
holders at the same time, and will depend upon when original capital
securities, book-entry confirmations with respect to original capital
securities and other required documents are received by the exchange agent.
Acceptance by the Trust and us of original capital securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement among you, the Trust and us upon the terms and subject to the
conditions of the exchange offer.
Determination of Validity
We and the Trust will determine all questions as to the form of documents,
validity, eligibility, including time of receipt, and acceptance for exchange
of any tendered original capital securities, in our sole discretion, and our
determination will be final and binding on all parties. We and the Trust
reserve the absolute right, in our sole and absolute discretion, to reject any
and all tenders determined by us not to be in proper form or the acceptance of
which, or exchange for, may, in the opinion of our counsel, be unlawful. We and
the Trust also reserve the absolute right, subject to applicable law, to waive
any of the conditions of the exchange offer as set forth under "--Conditions to
the Exchange Offer" or any condition or irregularity in any tender of original
capital securities of any particular holder whether or not similar conditions
or irregularities are waived in the case of other holders.
The Trust's and our interpretation of the terms and conditions of the
exchange offer, including the letter of transmittal and the instructions
thereto, will be final and binding. We will not deem any tender of original
capital securities to have been validly made until all irregularities with
respect to such tender have been cured or waived by us. None of First
Commonwealth, the Trust, any affiliates or assigns of First Commonwealth or the
Trust, the exchange agent or any other person will be under any duty to give
any notification of any irregularities in tenders or incur any liability for
failure to give any such notification.
If any letter of transmittal, endorsement, bond power, power of attorney or
any other document required by the letter of transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless we and the Trust waive
such requirement, you must submit proper evidence satisfactory to us and the
Trust, in our sole discretion, of such person's authority to so act.
If you are the beneficial owner of original capital securities that are held
by or registered in the name of a broker, dealer, commercial bank, trust
company or other nominee or custodian, we urge you to contact such entity
promptly if you wish to participate in the exchange offer.
Resales of Exchange Capital Securities
We and the Trust are making the exchange offer for the exchange capital
securities in reliance on the position of the staff of the Division of
Corporation Finance of the SEC as set forth in certain interpretive letters
addressed to third parties in other transactions. However, neither we nor the
Trust sought our own interpretive letter and there can be no assurance that the
staff of the Division of Corporation Finance of the SEC would make a similar
determination with respect to this exchange offer as it has in such
interpretive letters to third parties. Based on these interpretations by the
staff of the Division of Corporation Finance, and subject to the two
immediately following sentences, we and the Trust believe that exchange capital
securities issued in this exchange offer in exchange for original capital
securities may be offered for resale, resold and otherwise transferred by a
holder thereof without further compliance with the registration and prospectus
delivery requirements of the Securities Act; provided, however, that such
exchange capital securities are acquired in the ordinary course of such
holder's business, that such holder is not participating, and has no
arrangement or understanding with any person to participate in, a distribution
as defined in the Securities Act of such exchange capital securities and that
such holder is not a broker-dealer. However, any holder of original capital
securities
23
<PAGE>
who is an affiliate of First Commonwealth or the Trust or who intends to
participate in the exchange offer for the purpose of distributing exchange
capital securities, or any broker-dealer who purchased original capital
securities from the Trust to resell under Rule 144A or any other available
exemption under the Securities Act:
. will not be able to rely on the interpretations of the staff of the
Division of Corporation Finance of the SEC set forth in the above-
mentioned interpretive letters;
. will not be permitted or entitled to tender such original capital
securities in the exchange offer; and
. must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any sale or other transfer of
such original capital securities, unless such sale is made in an
exemption from such requirements.
In addition, as described below, participating broker-dealers must deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resales of exchange capital securities.
Each holder of original capital securities who wishes to exchange original
capital securities for exchange capital securities in the exchange offer must
represent that:
. it is not an affiliate of First Commonwealth or the Trust;
. any exchange capital securities to be received by it are being acquired
in the ordinary course of its business;
. it has no arrangement or understanding with any person to participate in
a distribution, as defined in the Securities Act, of such exchange
capital securities; and
. if such holder is not a broker-dealer, such holder is not engaged in,
and does not intend to engage in, a distribution of such exchange
capital securities.
The letter of transmittal contains the foregoing representations. In
addition, First Commonwealth and the Trust may require any holder, as a
condition to such holder's eligibility to participate in the exchange offer, to
furnish to First Commonwealth and the Trust in writing information as to the
number of "beneficial owners," as defined in Rule 13d-3 under the Exchange Act,
on behalf of whom such holder holds the capital securities to be exchanged in
the exchange offer.
Each participating broker-dealer will be deemed to have acknowledged by
execution of the letter of transmittal or delivery of an agent's message that
it acquired the original capital securities for its own account as the result
of market-making activities or other trading activities and must agree that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such exchange capital securities. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
participating broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. Based on the position
taken by the staff of the SEC's Division of Corporation Finance in the
interpretive letters referred to above, First Commonwealth and the Trust
believe that participating broker-dealers who acquired original capital
securities for their own accounts as a result of market-making activities or
other trading activities, may fulfill their prospectus delivery requirements
with respect to the exchange capital securities received upon exchange of such
original capital securities, other than original capital securities which
represent an unsold allotment from the original sale of the original capital
securities, with a prospectus meeting the requirements of the Securities Act.
This prospectus may be the prospectus prepared for this exchange offer so long
as it contains a description of the plan of distribution with respect to the
resale of such exchange capital securities. Accordingly, this prospectus, as it
may be amended or supplemented from time to time, may be used by a
participating broker-dealer during the period referred to below in connection
with resales of exchange capital securities received in exchange for original
capital securities where such original capital securities were acquired by such
participating broker-dealer for its own account as a result of market-making or
other trading activities. Subject to certain provisions set forth in the
registration rights agreement, First Commonwealth and
24
<PAGE>
the Trust have agreed that this prospectus, as it may be amended or
supplemented from time to time, may be used by a participating broker-dealer in
connection with resales of such exchange capital securities for 90 days after
the expiration date, subject to extension under certain limited circumstances
described below, or, if earlier, when all such exchange capital securities have
been disposed of by such participating broker-dealer. See "Certain Resales."
However, a participating broker-dealer who intends to use this prospectus in
connection with the resale of exchange capital securities received in exchange
for original capital securities must notify First Commonwealth or the Trust, or
cause First Commonwealth or the Trust to be notified, on or before the
expiration date, that it is a participating broker-dealer. Such notice may be
given in the space provided for that purpose in the letter of transmittal or
may be delivered to the exchange agent at one of the addresses set forth herein
under "--Exchange Agent."
Any person, including any participating broker-dealer who is an affiliate of
First Commonwealth or the Trust, may not rely on the foregoing interpretive
letters and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
We or the Trust will notify participating broker-dealers if any event occurs
or if we discover any fact that makes any statement contained or incorporated
by reference in this prospectus untrue in any material respect, or which causes
this prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference, in light of the
circumstances under which they were made, not misleading. We or the Trust will
also notify participating broker-dealers if certain other events occur, which
are specified in the registration rights agreement. Each participating broker-
dealer who surrenders original capital securities in the exchange offer will be
deemed to have agreed, by execution of the letter of transmittal or delivery of
an agent's message that, upon receipt of such notice, it will suspend the sale
of exchange capital securities, or the exchange guarantee or the exchange
debentures, as applicable, under the terms of this prospectus until we have
furnished or the Trust has furnished to the participating broker-dealer copies
of a prospectus it has amended or supplemented to correct such misstatement or
omission, or we have given or the Trust has given notice that the sale of the
exchange capital securities, or the exchange guarantee or the exchange
debentures, as applicable, may be resumed. If we give or the Trust gives such
notice to suspend the sale of the exchange capital securities, the exchange
guarantee or the exchange debentures, we shall extend the 90-day period
referred to above during which participating broker-dealers are entitled to use
this prospectus in connection with the resale of exchange capital securities by
a number of days equal to the period from and including the date of the giving
of such notice to and including the date when participating broker-dealers
shall have received copies of the amended or supplemented prospectus or to and
including the date on which we have given or the Trust has given notice that
the sale of exchange capital securities, exchange guarantee or exchange
debentures may be resumed.
Withdrawal Rights
Except as otherwise provided in this prospectus, tenders of original capital
securities may be withdrawn at any time on or before the expiration date. In
order for a withdrawal to be effective a written or facsimile transmission of
such notice of withdrawal must be timely received by the exchange agent at one
of its addresses set forth under "--Exchange Agent" on or before the expiration
date. Any such notice of withdrawal must specify the name of the person who
tendered the original capital securities to be withdrawn, the aggregate
principal amount of original capital securities to be withdrawn, and, if
certificates for such original capital securities have been tendered, the name
of the registered holder of the original capital securities as set forth on the
original capital securities, if different from that of the person who tendered
them. If original capital securities have been delivered or otherwise
identified to the exchange agent, then before their physical release, the
tendering holder must submit the certificate numbers shown on the particular
original capital securities to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
original capital securities tendered for the account of an Eligible
Institution.
If original capital securities have been tendered according to the
procedures for book-entry transfer set forth in "--Procedures for Tendering
Original Capital Securities," the notice of withdrawal must specify the
25
<PAGE>
name and number of the account at The Depository Trust Company to be credited
with the withdrawal of original capital securities, in which case a notice of
withdrawal will be effective if delivered to the exchange agent by written or
facsimile transmission. Withdrawals of tenders of original capital securities
may not be rescinded. Original capital securities properly withdrawn will not
be deemed validly tendered for purposes of the exchange offer, but may be
retendered at any subsequent time on or before the expiration date by following
any of the procedures described above under "--Procedures for Tendering
Original Capital Securities."
All questions as to the validity, form and eligibility, including time of
receipt, of such withdrawal notices will be determined by First Commonwealth
and the Trust, in their sole discretion, whose determination will be final and
binding on all parties. None of First Commonwealth, the Trust, any affiliates
or assigns of First Commonwealth or the Trust, the exchange agent or any other
person, will be under any duty to give any notification of any irregularities
in any notice of withdrawal or incur any liability for failure to give any such
notification. Any original capital securities which have been tendered but
which are withdrawn will be returned to the holder thereof promptly after
withdrawal.
Distributions on Exchange Capital Securities
Distributions on the exchange capital securities are payable semi-annually
in arrears on March 1 and September 1 of each year, beginning March 1, 2000, at
the annual rate of 9.50% of the liquidation amount to the holders of the
exchange capital securities on the relevant record dates. Distributions on the
exchange capital securities will accumulate from September 8, 1999, the date of
the initial issuance of the original capital securities.
Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or any extension
of the exchange offer, First Commonwealth and the Trust will not be required to
accept for exchange, or to exchange, any original capital securities for any
exchange capital securities, and, as described below, may terminate the
exchange offer, whether or not any original capital securities have previously
been accepted for exchange, or may waive any conditions to or amend the
exchange offer, if any of the following conditions have occurred or exist:
. there shall occur a change in the current interpretation by the staff of
the SEC that permits the exchange capital securities issued in the
exchange offer to be offered for resale, resold and otherwise
transferred by their holders, other than broker-dealers and any holder
which is an affiliate of First Commonwealth or the Trust, without
compliance with the registration and prospectus delivery provisions of
the Securities Act; provided, however, that such exchange capital
securities are acquired in the ordinary course of the holders' business
and such holders have no arrangement or understanding with any person to
participate in the distribution of such exchange capital securities;
. any law, statute, rule or regulation shall have been adopted or enacted
which, in the judgment of First Commonwealth or the Trust, would
reasonably be expected to impair its ability to proceed with the
exchange offer;
. any action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency or body with respect to
the exchange offer which, in First Commonwealth's or the Trust's
judgment, would reasonably be expected to impair the ability of the
Trust or First Commonwealth to proceed with the exchange offer;
. a banking moratorium shall have been declared by United States federal
or Pennsylvania or New York state authorities which, in First
Commonwealth' or the Trust's judgment, would reasonably be expected to
impair the ability of the Trust or First Commonwealth to proceed with
the exchange offer;
26
<PAGE>
. trading on the New York Stock Exchange or generally in the United States
over-the-counter market shall have been suspended by order of the SEC or
any other governmental authority which, in First Commonwealth' or the
Trust's judgment, would reasonably be expected to impair the ability of
the Trust or First Commonwealth to proceed with the exchange offer; or
. a stop order shall have been issued by the SEC or any state securities
authority suspending the effectiveness of the registration statement or
proceedings shall have been initiated or, to the knowledge of First
Commonwealth or the Trust, threatened for that purpose, or any
governmental approval which either First Commonwealth or the Trust
shall, in its sole discretion, deem necessary for the consummation of
the exchange offer as contemplated hereby has not been obtained.
If First Commonwealth or the Trust determine in their sole and absolute
discretion that any of the foregoing events or conditions has occurred or
exists, they may, subject to applicable law, terminate the exchange offer or
waive any such condition or otherwise amend the terms of the exchange offer in
any respect. If such waiver or amendment constitutes a material change to the
exchange offer, First Commonwealth and the Trust will promptly disclose such
waiver or amendment by means of a prospectus supplement that will be
distributed to the registered holders of the original capital securities and
will extend the exchange offer to the extent required by Rule 14e-1 under the
Exchange Act.
Exchange Agent
The Chase Manhattan Bank has been appointed as exchange agent for the
exchange offer. Delivery of the letters of transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this prospectus or of the letter of transmittal should be directed to
the exchange agent as follows:
By Hand
By Registered or
Certified Mail or Overnight
Delivery
The Chase Manhattan Bank
Corporate Trust Securities Window
The Chase Manhattan Bank 55 Water Street
Money Market Operations Room 234
55 Water Street North Building
Room 234 New York, New York 10041
North Building Attn: Carlos Esteves
New York, New York 10041
Attn: Carlos Esteves
Confirm by telephone or for
information call:
(212) 638-0828
Facsimile transmission
(eligible institutions only):
(212) 638-7380 or (212) 638-7381
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
Fees and Expenses
First Commonwealth has agreed to pay the exchange agent reasonable and
customary fees for its services and will reimburse it for its reasonable out-
of-pocket expenses in connection therewith. First Commonwealth will also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket
27
<PAGE>
expenses incurred by them in forwarding copies of this prospectus and related
documents to the beneficial owners of original capital securities, and in
handling or tendering for their customers.
Holders who tender their original capital securities for exchange will not
be obligated to pay any transfer taxes in connection therewith. If, however,
exchange capital securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the original capital
securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of original capital securities in connection with the exchange
offer, then the amount of any such transfer taxes, whether imposed on the
registered holder or any other persons, will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the letter of transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
Neither First Commonwealth nor the Trust will make any payment to brokers,
dealers or other nominees soliciting acceptances of the exchange offer.
Shelf Registration Statement
If, because of any change in law or in the currently prevailing
interpretations of the staff of the SEC, First Commonwealth and the Trust are
not permitted to effect this exchange offer, or for any reason the exchange
offer registration statement is not declared effective by March 6, 2000, or in
certain other circumstances, then in addition to or in lieu of effecting the
registration of the exchange capital securities in the exchange offer
registration statement, the administrative trustees on behalf of the Trust
will:
. promptly deliver to the holders and the property trustee written notice
of the foregoing; and
. at First Commonwealth's sole expense,
. promptly cause to be filed a shelf registration covering resales of
the capital securities, the capital securities guarantee and the
debentures;
. use their best efforts to cause the shelf registration statement to
be declared effective under the Securities Act; and
. use their best efforts to keep effective the shelf registration
statement until the earlier of two years after the date of issuance
of the original capital securities or such time as all of the
applicable capital securities, the capital securities guarantee and
the debentures have been sold under the registration statement or
otherwise cease to be registrable securities within the meaning of
the registration rights agreement.
First Commonwealth will, in the event that a shelf registration statement is
filed, send to each holder copies of the prospectus that is a part of the shelf
registration statement, notify each such holder when the shelf registration
statement for the capital securities, the capital securities guarantee and the
debentures has become effective and take certain other actions as are required
to permit unrestricted resales of the capital securities, the capital
securities guarantee and the debentures. A holder that sells capital
securities, the capital securities guarantee and the debentures under the shelf
registration statement generally will be required to be named as a selling
security holder in the related prospectus and to deliver a prospectus to
purchasers, will be subject to certain of the civil liability provisions under
the Securities Act in connection with such sales and will be bound by the
provisions of the registration rights agreement that are applicable to such a
holder (including certain indemnification rights and obligations).
Each capital security, the capital securities guarantee and each debenture
contains a legend to the effect that the holder thereof, by its acceptance
thereof, will be deemed to have agreed to be bound by the provisions of the
registration rights agreement. In that regard, each holder will be deemed to
have agreed that, upon receipt of notice from First Commonwealth of the
occurrence of any event which makes such statement in the prospectus which is
part of the shelf registration statement (or, in the case of participating
broker-dealers, the
28
<PAGE>
prospectus which is a part of the exchange offer registration statement) untrue
in any material respect or which requires the making of any changes in such
prospectus in order to make the statements therein not misleading or of certain
other events specified in the registration rights agreement, such holder (or
participating broker-dealer, as the case may be) will suspend the sale of
capital securities, the capital securities guarantee and the debentures
pursuant to such prospectus until First Commonwealth has amended or
supplemented such prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented prospectus to such holder (or
participating broker-dealer, as the case may be) or First Commonwealth has
given notice that the sale of the capital securities, the capital securities
guarantee and the debentures may be resumed, as the case may be.
If First Commonwealth has given notice to suspend the sale of the capital
securities, the capital securities guarantee and the debentures, it must extend
the relevant period referred to above during which First Commonwealth and the
Trust are required to keep effective the shelf registration statement (or the
period during which participating broker-dealers may use the prospectus
included in the exchange offer registration statement in connection with the
resale of exchange capital securities, exchange guarantee, or exchange
debentures, as the case may be) by the number of days during the period from
and including the date of the giving of such notice to and including the date
when holders shall have received copies of the supplemented or amended
prospectus necessary to permit resales of the capital securities, the capital
securities guarantee and the debentures or to and including the date on which
First Commonwealth has given notice that the sale of capital securities may be
resumed, as the case may be.
Additional Distributions/Additional Interest
The occurrence of any of the following events will constitute a registration
default under the registration rights agreement:
. if neither the exchange offer registration statement nor a shelf
registration statement is filed with the SEC on or before the 150th day
after the date of issuance of the original capital securities;
. neither the exchange offer registration statement nor a shelf
registration statement is declared effective by the SEC on or before the
30th day after the applicable required filing date;
. if the Trust has not exchanged exchange capital securities for all of
the original capital securities, or First Commonwealth has not accepted
for exchange the debentures for the exchange debentures or the capital
securities guarantees for the exchange guarantees in accordance with the
terms of the exchange offer on or before the 45th business day after the
date on which the exchange offer registration statement was declared
effective; or
. if applicable, the shelf registration statement is declared effective
but thereafter ceases to be effective at any time before the second
anniversary of the date of issuance of the original capital securities
(other than after such time as all of the capital securities have been
disposed of thereunder, otherwise cease to be registrable securities
within the meaning of the registration rights agreement or an exchange
offer has been consummated).
If a registration default occurs, then:
. additional distributions at the rate of 0.25% per annum will become
payable on the capital securities; and
. additional interest at the rate of 0.25% per annum will become payable
on the debentures;
commencing, in each case, as of the business day after the applicable
registration default.
Notwithstanding the foregoing, the rate of additional distributions on the
liquidation amount of each of the capital securities may not exceed in the
aggregate 0.25% per annum and the rate of additional interest on the principal
amount of the debentures may not exceed in the aggregate 0.25% per annum.
Following the cure of
29
<PAGE>
all registration defaults, if any, additional distributions on the liquidation
amount of the capital securities and additional interest on the principal
amount of the debentures shall cease to accrue.
Any amounts of additional interest and additional distributions due pursuant
to the foregoing will be payable in cash on March 1 and September 1 of each
year to the holders of record on the fifteenth day of the month which precedes
the month in which the relevant payment date falls.
If First Commonwealth becomes eligible to conduct an exchange offer at a
date after the shelf registration statement has been declared effective, First
Commonwealth may, but is not obligated to, commence an exchange offer on or
after such date whereby the capital securities, capital securities guarantee
and debentures may be exchanged for exchange capital securities, an exchange
guarantee and exchange debentures, having the terms described above. After the
consummation of such an exchange offer, First Commonwealth will no longer be
obligated to maintain a shelf registration statement in respect of any holder
of capital securities or debentures which holder could have received securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws through its participation in the
exchange offer.
The registration rights agreement provides that it is governed by the laws
of the State of New York. The summary herein of certain provisions of the
registration rights agreement does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, all the provisions of the
registration rights agreement, a form of which is available upon request to
First Commonwealth. See "Where You Can Find More Information." In addition, the
information set forth above concerning certain interpretations of and positions
taken by the Staff is not intended to constitute legal advice, and prospective
investors should consult their own legal advisors with respect to such matters.
30
<PAGE>
DESCRIPTION OF CAPITAL SECURITIES
The terms of the exchange securities are identical in all material respects
to the terms of the original securities, except that:
. the original securities have not been registered under the Securities
Act, are subject to restrictions on transfer under federal and state
securities laws and are entitled to certain rights under the
registration rights agreement which will terminate upon consummation of
the exchange offer;
. the exchange capital securities will not provide for any increase in the
distribution rate; and
. the exchange debentures will not provide for any increase in the
interest rate.
The exchange capital securities will be issued under the terms of the
declaration. The exchange capital securities represent beneficial ownership
interests in the Trust and holders of the capital securities will be entitled
to a preference over the common securities in certain circumstances with
respect to distributions and amounts payable on redemption of the capital and
common securities, which are sometimes referred to in this prospectus
collectively as the "trust securities," or liquidation of the Trust. See "--
Subordination of Common Securities" below. The declaration will be qualified
under the Trust Indenture Act of 1939, as amended upon effectiveness of the
exchange offer registration statement or the shelf registration statement. The
following description of the material terms and provisions of the capital
securities is not complete and is subject to, and is qualified in its entirety
by reference to, the declaration and the Trust Indenture Act. Certain
capitalized terms used herein are defined in the declaration.
General Description of the Capital Securities
The capital securities are limited to $35,000,000 aggregate liquidation
amount at any one time outstanding, including original capital securities and
exchange capital securities that may be issued from time to time in exchange
for original capital securities in the Exchange Offer. The original capital
securities and the exchange capital securities, will, when issued, rank equal
to, and payments will be made thereon pro rata, with the common securities
except as described under "--Subordination of Common Securities" below. Legal
title to the debentures is held by the Property Trustee in trust for the
benefit of the holders of the capital securities and the common securities. The
original capital securities guarantee and the exchange capital securities
guarantee, when issued, will not guarantee payment of distributions or amounts
payable on redemption of the capital securities or liquidation of the Trust
when the Trust does not have funds on hand legally available for such payments.
See "Description of Securities Guarantee."
Semi-annual Distributions on the Capital Securities
The Trust will make distributions on the capital securities on a cumulative
basis, and distributions will accumulate from September 8, 1999 and be payable
semi-annually in arrears on March 1 and September 1 of each year, commencing
March 1, 2000, at the annual rate of 9.50% of the liquidation amount to the
holders of the capital securities on the relevant record dates. The record
dates will be the fifteenth day of the month which precedes the month in which
the relevant Distribution Date (as defined herein) falls. The amount of
distributions payable to holders for any period will be computed on the basis
of a 360-day year of twelve 30-day months and, for any period of less than a
full calendar month, the number of days elapsed in such month. In the event
that any date on which distributions are payable an the capital securities is
not a Business Day (as defined herein), payment of the distributions payable on
such date will be made on the next succeeding day that
31
<PAGE>
is a Business Day (without any interest or other payment in respect of the
distribution subject to delay), in each case, with the same force and effect as
if made on the scheduled payment date (each date on which distributions are
payable in accordance with the foregoing, a "Distribution Date").
A "Business Day" shall mean any day other than a Saturday or a Sunday, or a
day on which banking institutions in New York, New York are authorized or
required by law or executive order to close.
So long as no Debenture Event of Default (as defined on page 52) has
occurred and is continuing, First Commonwealth may, pursuant to the indenture,
elect to defer interest payments on the debentures at any time and from time to
time for a period not exceeding 10 consecutive semi-annual periods with respect
to each deferral period (each, an "Extension Period"), provided that no
Extension Period may end on a day other than an interest payment date on the
debentures or extend beyond September 1, 2029, the stated maturity date of the
debentures (the "Stated Maturity Date"). Upon any such election, semi-annual
distributions on the capital securities will be deferred by the Trust during
such Extension Period. Distributions to which holders of the capital securities
are entitled during any such Extension Period will accumulate additional
distributions thereon at the rate per annum of 9.50% thereof, compounded semi-
annually from the relevant Distribution Date. The term "distributions," as used
herein, includes any such additional distributions.
During any Extension Period, First Commonwealth may extend such Extension
Period, provided that the extension does not cause the Extension Period to
exceed 10 consecutive semi-annual periods or to extend beyond the Stated
Maturity Date. Upon the termination of any Extension Period and the payment of
all amounts then due, and subject to the foregoing limitations, First
Commonwealth may elect to begin a new Extension Period. First Commonwealth must
give the Property Trustee, the Administrative Trustees and the Delaware Trustee
under the indenture notice of its election of any Extension Period or any
extension thereof at least five Business Days prior to the earlier of:
. the date the distributions on the capital securities would have been
payable except for the election to begin or extend such Extension
Period; and
. the date the Administrative Trustees are required to give notice of the
record date or the date such distributions are payable, but in any event
not less than five Business Days prior to such record date.
There is no limitation on the number of times that First Commonwealth may
elect to begin an Extension Period. See "Description of Junior Subordinated
Debentures--First Commonwealth's Option to Extend Interest Payment Date" and
"Federal Income Tax Consequences--Interest Income and Original Issue Discount."
During any Extension Period, First Commonwealth may not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its
capital stock (which includes common and preferred stock);
. make any payment of principal of or premium, if any, or interest on or
repay, repurchase or redeem any of its debt securities (including Other
Debentures as defined on page 45) that rank equal with or junior in
right of payment to the debentures; or
. make any guarantee payments with respect to any guarantee by it of any
securities of any of its subsidiaries (including Other Guarantees as
defined on page 58) if such guarantee ranks equal with or junior in
right of payment to the debentures;
provided, however, that the foregoing limitation does not apply to:
. dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, its common stock;
. any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan
in the future, or the redemption or repurchase of any such rights under
such a plan;
32
<PAGE>
. payments under the capital securities guarantee;
. as a direct result of, and only to the extent required in order to avoid
the issuance of fractional shares of capital stock following a
reclassification of its capital stock or the exchange or conversion of
one class, or series of its capital stock for another class or series of
its capital stock;
. the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange of such capital stock or the
security being converted or exchanged; and
. purchases of common stock related to the issuance of common stock or
rights under any of its benefit plans for its directors, officers or
employees or its dividend reinvestment plan.
Although First Commonwealth may in the future exercise its option to defer
payments of interest on the debentures, First Commonwealth has no current
intention to exercise its option.
The revenue of the Trust available for distribution to holders of the
capital securities will be limited to payments under the debentures in which
the Trust will invest the proceeds from the issuance and sale of the trust
securities. See "Description of Junior Subordinated Debentures--General
Description of the Junior Subordinated Debentures." If First Commonwealth does
not make interest payments on the debentures, the Property Trustee will not
have funds available to pay distributions on the capital securities. The
payment of distributions (if and to the extent the Trust has funds on hand
legally available for the payment of such distributions) will be guaranteed by
First Commonwealth on a limited basis as set forth herein under "Description of
the Capital Securities Guarantee."
Redemption of the Junior Subordinated Debentures
Upon First Commonwealth's repayment on the Stated Maturity Date or
redemption in whole or in part prior to the Stated Maturity Date of the
debentures (other than following the distribution of the debentures to the
holders of the trust securities), the proceeds from such redemption or
prepayment shall be applied by the Property Trustee to redeem a Like Amount (as
defined below) of the trust securities, upon not less than 30 nor more than 60
days' notice of a date of redemption (the "Redemption Date") at the applicable
redemption price, which shall be equal to:
. in the case of the repayment of the debentures on the Stated Maturity
Date, the principal of and accrued and unpaid interest on the
debentures;
. in the case of the optional prepayment of the debentures before
September 1, 2009 (the "Initial Optional Prepayment Date") upon the
occurrence and continuation of a Special Event (as defined on page 48),
the Special Event Redemption Price (equal to the Special Event
Prepayment Price in respect of the debentures as such term is defined on
page 48) (the "Special Event Redemption Price"); and
. in the case of the optional prepayment of the debentures after the
Initial Optional Prepayment Date, the Optional Redemption Price (equal
to the Optional Prepayment Price in respect of the debentures as such
term is defined on page 48) (the "Optional Redemption Price").
See "Description of Junior Subordinated Debentures--Optional Redemption" and
"--Optional Redemption Upon the Occurrence of a Special Event." If less than
all of the debentures are to redeemed on a Redemption Date, then the proceeds
of such redemption shall be allocated to the redemption pro rata of the capital
securities and the common securities.
"Like Amount" means:
. with respect to a redemption of the trust securities, trust securities
having a liquidation amount equal to the principal amount of debentures
to be paid in accordance with their terms; and
. with respect to a distribution of debentures upon the liquidation of the
Trust, debentures having a principal amount equal to the liquidation
amount of the trust securities of the holder to whom such debentures are
distributed.
33
<PAGE>
Subject to receipt of prior approval by the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve, First
Commonwealth will have the option to prepay the debentures:
. in whole or in part, on or after the Initial Optional Prepayment Date,
at the applicable Optional Prepayment Price; and
. in whole but not in part, at any time before the Initial Optional
Prepayment Date, upon the occurrence of a Special Event, at the Special
Event Prepayment Price.
Liquidation of the Trust and Distribution of Debentures
First Commonwealth will have the right at any time to dissolve the Trust and
cause the debentures to be distributed to the holders of the trust securities
in liquidation of the Trust. Such right is subject to (1) First Commonwealth
having received an opinion of counsel to the effect that the distribution will
not be a taxable event to holders of capital securities, and (2) the receipt of
any required regulatory approval, including the prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of the
Federal Reserve.
Upon liquidation of the Trust and certain other events, the debentures may
be distributed to holders of capital securities. For a description of the tax
consequences under the Internal Revenue Code associated therewith, see "Federal
Income Tax Consequences--Receipt of Debentures or Cash Upon Liquidation of the
Trust."
The Trust shall automatically dissolve upon the first to occur of:
. certain events of bankruptcy, dissolution or liquidation of First
Commonwealth or the Trust;
. the distribution of a Like Amount of the debentures to the holders of
the trust securities, if First Commonwealth, as sponsor of the Trust,
has given written direction to the Property Trustee to terminate the
Trust, which direction is optional and, except as described above,
wholly within the discretion of First Commonwealth;
. the redemption of all of the trust securities as described under "--
Redemption of the Junior Subordinated Debentures" above;
. the expiration of the term of the Trust; or
. the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
If a dissolution occurs as described above except through redemption of all
of the trust securities, the Administrative Trustees shall liquidate the Trust
as expeditiously as they determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to the holders of the trust securities a Like Amount of the debentures. In
such an event, such holders will be entitled to receive out of the assets of
the Trust legally available for distribution to holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to, in the case of the holders of capital securities, the aggregate of
the liquidation amount plus accumulated and unpaid distributions thereon to the
date of payment. We refer to this amount as the "Liquidation Distribution." If
upon the Trust's 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 capital securities and the common securities shall be paid on a
pro rata basis, except that if a Debenture Event of Default has occurred and is
continuing, the capital securities shall have a priority over the common
securities. See "--Subordination of Common Securities" below.
After the liquidation date is fixed for any distribution of debentures to
holders of the trust securities:
. the trust securities will no longer be deemed to be outstanding;
34
<PAGE>
. each registered global certificate, if any, representing trust
securities and held by The Depository Trust Company or its nominee will
receive a registered global certificate or certificates representing the
debentures to be delivered upon such distribution; and
. any certificates representing trust securities not held by The
Depository Trust Company or its nominee will be deemed to represent
debentures having a principal amount equal to the liquidation amount of
such trust securities and bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid distributions on such trust
securities until such certificates are presented to the Administrative
Trustees or their agent for cancellation, whereupon First Commonwealth
will issue to such holder, and the Debenture Trustee (as defined on page
45) will authenticate, a certificate representing such debentures.
There can be no assurance as to the market prices for the capital securities
or the debentures that may be distributed in exchange for the trust securities
if a dissolution and liquidation of the Trust were to occur. Accordingly, the
capital securities or the debentures received on dissolution and liquidation of
the Trust, may trade at a discount to the price that the investor paid to
purchase the capital securities.
Redemption Procedures
In the event of redemption, the trust securities shall be redeemed by the
Trust at the applicable redemption price with the proceeds from the
contemporaneous repayment or redemption of the debentures. Any redemption of
trust securities by the Trust shall be made and the applicable redemption price
shall be payable on the Redemption Date only to the extent that the Trust has
funds legally available for the payment of such applicable redemption price.
See also "--Subordination of Common Securities" below.
If the Trust gives a notice of redemption in respect of the capital
securities, then, by 12:00 noon, New York City time, on the Redemption Date, to
the extent funds are legally available, with respect to the capital securities
held by The Depository Trust Company or its nominees, the Property Trustee will
pay or cause the paying agent for the capital securities (the "Paying Agent")
to pay the applicable redemption price to The Depository Trust Company. See "--
Form of Capital Securities " below. With respect to the capital securities held
in certificated form, the Property Trustee, to the extent funds are legally
available, will give irrevocable instructions and authority to the Paying Agent
and will irrevocably deposit with the Paying Agent for the capital securities
funds sufficient to pay or cause the Paying Agent to pay the applicable
redemption price to the holders thereof upon surrender of their certificates
evidencing the capital securities. See "Description of Junior Subordinated
Debentures--Payment and Paying Agents." Distributions payable on or prior to
the Redemption Date shall be payable to the holders of such capital securities
on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of deposit, all rights of holders of any capital securities so called for
redemption will cease, except the right of the holders of those capital
securities to receive the applicable redemption price, but without interest,
and such capital securities will cease to be outstanding. In the event that any
Redemption Date is not a Business Day, then payment of the applicable
redemption price payable on such date will be made on the next succeeding day
that is a Business Day, without any interest or other payment in respect of any
such delay. In the event that payment of the applicable redemption price is
improperly withheld or refused and not paid either by the Trust or by First
Commonwealth pursuant to the capital securities guarantee as described under
"Description of the Capital Securities Guarantee,"
. distributions on capital securities called for redemption will
accumulate on the redemption price at the then applicable rate, from the
Redemption Date originally established by the Trust to the date such
applicable redemption price is actually paid; and
. the actual payment date will be the Redemption Date for purposes of
calculating the applicable redemption price.
Subject to applicable law, including, without limitation, United States
federal securities law and the regulations of the Federal Reserve, First
Commonwealth or its subsidiaries may at any time and from time to time purchase
outstanding capital securities by tender, in the open market or by private
agreement.
35
<PAGE>
Notice of any redemption will be mailed at least 30 days but not more than
60 days prior to the Redemption Date to each holder of trust securities at its
registered address. Unless First Commonwealth defaults in payment of the
applicable prepayment price on, or in the repayment of, the debentures, on and
after the Redemption Date distributions will cease to accrue on the trust
securities called for redemption.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, the capital
securities and the common securities, as applicable, shall be made pro rata
based on the liquidation amount of the capital securities and common
securities. However, if a Debenture Event of Default shall have occurred and be
continuing on any Distribution Date or Redemption Date, no payment of any
distribution on, or applicable redemption price of, any of the common
securities, and no other payment on account of the redemption, liquidation or
other acquisition of the common securities, shall be made unless payment in
full in cash of all accumulated and unpaid distributions on all of the
outstanding capital securities for all Distribution Periods terminating on or
prior thereto or, in the case of capital securities called for redemption on a
Redemption Date on or prior thereto, the full amount of the redemption price
therefor, 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 redemption price of, the capital securities then due and
payable.
If an Event of Default, as defined below, should occur, First Commonwealth,
as holder of the common securities, will be deemed to have waived any right to
act with respect to such Event of Default until the effect of the Event of
Default shall have been cured, waived or otherwise eliminated. Until any such
Event of Default has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the holders of the capital
securities and not on behalf of First Commonwealth as holder of the common
securities, and only the holders of the capital securities will have the right
to direct the Property Trustee to act on their behalf.
Events of Default; Notice
The occurrence of a Debenture Event of Default constitutes an "Event of
Default" under the declaration. See "Description of Junior Subordinated
Debentures--Debenture Events of Default."
Within ten (10) Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the capital securities, the
Administrative Trustees and First Commonwealth, as sponsor of the Trust, unless
the Event of Default has been cured or waived. First Commonwealth, as sponsor
of the Trust, and the Administrative Trustees are required to file annually
with the Property Trustee a certificate as to whether or not they are in
compliance with all the conditions and covenants applicable to them under the
declaration.
If a Debenture Event of Default has occurred and is continuing, the capital
securities shall have a preference over the common securities as described
under "--Liquidation of the Trust and Distribution of Debentures" and "--
Subordination of Common Securities" above.
Removal of Issuer Trustees
Unless a Debenture Event of Default has occurred and is continuing, First
Commonwealth, as the holder of the common securities may remove any Issuer
Trustee at any time. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time only by the holders of a majority in liquidation amount of the
outstanding capital securities. In no event will the holders of the capital
securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in First
Commonwealth as the holder of the common securities. No resignation or removal
of an Issuer Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the declaration.
36
<PAGE>
Merger or Consolidation of Issuer Trustees
Any person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
declaration, provided such person shall be otherwise qualified and eligible.
No Merger, Consolidation or Sale of Assets of the Trust
The Trust may not merge or convert with or into, consolidate, amalgamate or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other person,
except as described below. The Trust may, at the request of First Commonwealth,
as sponsor of the Trust, with the consent of the Administrative Trustees but
without the consent of the holders of the capital securities, merge or convert
with or into, consolidate, amalgamate or be replaced by or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to a trust organized as such under the laws of any state; provided, that:
. such successor entity either:
. expressly assumes all of the obligations of the Trust with respect
to the capital securities; or
. substitutes for the capital securities other securities having
substantially the same terms as the capital securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the capital securities rank with respect to distributions
and payments upon liquidation, redemption and otherwise;
. First Commonwealth expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee with
respect to the debentures;
. the capital securities or any Successor Securities are listed or quoted,
or any Successor Securities will be listed or quoted upon notification
of issuance, on any national securities exchange or other organization
on which the capital securities are then listed or quoted, if any;
. any merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the capital securities,
including any Successor Securities, to be downgraded by any nationally-
recognized statistical rating organization;
. any merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the capital securities,
including any Successor Securities, in any material respect, other than
any dilution of such holders' interests in the new entity;
. such successor entity has a purpose substantially identical to that of
the Trust;
. before any merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease, First Commonwealth has received an
opinion from independent counsel to the Trust experienced in such
matters to the effect that:
. any merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the capital securities,
including any Successor Securities, in any material respect, other
than any dilution of such holders' interests in the new entity; and
. following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an "investment
company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
37
<PAGE>
. First Commonwealth or any permitted successor or assignee owns all of
the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at
least to the extent provided by the capital securities guarantee.
Notwithstanding the foregoing, the Trust may not, except with the consent of
holders of 100% in liquidation amount of the trust securities, consolidate,
amalgamate, merge or convert with or into, or be replaced by or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge or convert with or into, or replace it, if it would cause the
Trust or the successor entity not to be classified as a grantor trust for
United States federal income tax purposes. In addition, the Property Trustee
will be required pursuant to the indenture to exchange, as a part of the
exchange offer, the debentures for the exchange debentures, which will have
terms identical in all material respects to the debentures, except for the
transfer restrictions under the Securities Act and the provision for an
increase in the interest rate thereon under certain circumstances. See "The
Exchange Offer."
Limited Voting Rights of Capital Security Holders; Modification and Amendment
of the Declaration
Except as provided below and under "--No Merger; Consolidation or Sale of
Assets of the Trust" above and "Description of the Capital Securities
Guarantee--Amendments and Assignment" and as otherwise required by law and the
declaration, the holders of the capital securities will have no voting rights.
The declaration may be amended from time to time by First Commonwealth, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the trust securities:
. to cure any ambiguity, correct or supplement any provisions in the
declaration that may be inconsistent with any other provision, or to
make any other provisions with respect to matters or questions arising
under the declaration, which shall not be inconsistent with the other
provisions of the declaration;
. to modify, eliminate or add to any provisions of the declaration to such
extent as shall be necessary to ensure that the Trust will be classified
for United States federal income tax purposes as a grantor trust at all
times that any trust securities are outstanding or to ensure that the
Trust will not be required to register as an "investment company" under
the Investment Company Act; or
. to modify, eliminate or add any provisions of the declaration to such
extent as shall be necessary to enable the Trust and First Commonwealth
to conduct this exchange offer in the manner contemplated by the
registration rights agreement;
so long as any such amendment does not adversely affect in any material respect
the interests of the holders of the trust securities. Any of these amendments
of the declaration shall become effective when notice thereof is given to the
holders of the trust securities. The declaration may be amended by the Issuer
Trustees and First Commonwealth with the consent of holders representing a
majority, based upon liquidation amount, of the outstanding trust securities if
the Issuer Trustees receive an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States federal income tax purposes or the Trust's exemption
from status as an "investment company" under the Investment Company Act.
Notwithstanding the foregoing, the declaration may not be amended without
the consent of each holder of trust securities, to (1) change the amount or
timing of any Distribution or other payment on the trust securities or
otherwise adversely affect the amount of any Distribution or other payment
required to be made in respect of the trust securities as of a specified date,
or (2) restrict the right of a holder of trust securities to institute suit for
the enforcement of any such payment on or after such date.
So long as any debentures are held by the Property Trustee, the Issuer
Trustees will not without obtaining the prior approval of the holders of a
majority in liquidation amount of all outstanding capital securities:
38
<PAGE>
. direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or execute any trust or power
conferred on the Debenture Trustee with respect to the debentures;
. waive certain past defaults under the indenture;
. exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the debentures; or
. consent to any amendment, modification or termination of the indenture
or the debentures, where such consent is required unless the Trust shall
have received an opinion of an independent tax counsel experienced in
such matters to the effect that such modification will not cause more
than an insubstantial risk that for United States federal income tax
purposes the Trust will not be classified as a grantor trust; provided,
however, that where a consent under the indenture would require the
consent of each holder of debentures affected thereby, no consent shall
be given by the Property Trustee without the prior approval of each
holder of the capital securities.
The Issuer Trustees shall not revoke any action previously authorized or
approved by a vote of the holders of the capital securities except by
subsequent vote of such holders. The Property Trustee will notify each holder
of capital securities of any notice of default with respect to the debentures.
In addition to obtaining the foregoing approvals of holders of the capital
securities, before taking any of the foregoing actions, the Issuer Trustees
will obtain an opinion of counsel experienced in such matters to the effect
that the Trust will not be classified as an association taxable as a
corporation for United States federal income tax purposes on account of such
action.
Any required approval of holders of capital securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at
which holders of capital securities are entitled to vote, or of any matter upon
which action by written consent of such holders is to be taken, to be given to
each holder of record of capital securities in the manner set forth in the
declaration.
No vote or consent of the holders of capital securities will be required for
the Trust to redeem and cancel the capital securities in accordance with the
declaration.
Notwithstanding that holders of the capital securities are entitled to vote
or consent under any of the circumstances described above, any of the capital
securities that are owned by First Commonwealth or any affiliate of First
Commonwealth will, for purposes of such vote or consent, be treated as if they
were not outstanding.
Form of Capital Securities
The exchange capital securities may be issued in certificated form or as
global capital securities, which will consist of one or more capital securities
in registered, global form.
The global capital securities will be deposited upon issuance with the
Property Trustee as custodian for The Depository Trust Company, in New York,
New York, and registered in the name of The Depository Trust Company or its
nominee, in each case for credit to an account of a direct or indirect
participant in The Depository Trust Company as described below.
Except as set forth below, the global capital securities may be transferred,
in whole and not in part, only to another nominee of The Depository Trust
Company or to a successor of The Depository Trust Company or its
39
<PAGE>
nominee. Beneficial interests in the global capital securities may not be
exchanged for capital securities in certificated form except in the limited
circumstances described under "--Exchange of Book-Entry Capital Securities for
Certificated Capital Securities" below.
Capital securities that are not issued as global capital securities will be
issued only in registered, certificated (i.e., non-global) form. These
securities may not be exchanged for beneficial interests in any global capital
securities except in the limited circumstances described below. See "--Exchange
of Certificated Capital Securities for Book-Entry Capital Securities" below.
Depositary Procedures
The Depository Trust Company has advised the Trust and First Commonwealth
that it is a limited-purpose trust company organized under the laws of the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depository Trust Company holds securities that its participants (collectively,
the "Participants") deposit with The Depository Trust Company. The Depository
Trust Company also facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Participants in The Depository Trust Company include securities brokers and
dealers, banks, trust companies, clearing corporation and certain other
organizations. The Depository Trust Company is owned by a number of its
participants and by the New York Stock Exchange, the American Stock Exchange,
Inc., and the National Association of Securities Dealers, Inc. Indirect access
to The Depository Trust Company system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to The Depository
Trust Company and its participants are on file with the SEC.
The Depository Trust Company has advised the Trust and First Commonwealth
that, pursuant to procedures established by it:
. upon deposit of the global capital securities representing exchange
capital securities, The Depository Trust Company will credit the
accounts of participants exchanging original capital securities
represented by global capital securities with portions of the
liquidation amount of the global capital securities; and
. ownership of such interests in the global capital securities will be
shown on, and the transfer of ownership thereof will be effected only
through, records maintained by The Depository Trust Company (with
respect to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interests in
the global capital securities).
Purchases of the global capital securities may be made directly through The
Depository Trust Company if they are Participants in such system or indirectly
through organizations, including Euroclear and Cedel, which are Participants in
such system. All interests in a global capital security, including those held
through Euroclear or Cedel will be subject to the procedures and requirements
of The Depository Trust Company. Those interests held through Euroclear or
Cedel also may be subject to the procedures and requirements of such system.
The laws of some states require that certain persons take physical delivery in
certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a global capital security to such persons will
be limited to that extent. Because The Depository Trust Company can act only on
behalf of Participants, which in turn act on behalf of Indirect Participants
and certain banks, the ability of a person having beneficial interests in a
global capital security to pledge such interests to persons or entities that do
not participate in The Depository Trust Company system, or otherwise take
actions in respect of such interests, may be affected by the lack of a physical
certificate evidencing such interests. For certain other restrictions on the
transferability of the capital
40
<PAGE>
securities, see "--Exchange of Book-Entry Capital Securities for Certificated
Capital Securities" and "--Exchange of Certificated Capital Securities for
Book-Entry Capital Securities" below.
Except as described below, owners of interests in the global capital
securities will not have capital securities registered in their name, will not
receive physical delivery of capital securities in certificated form and will
not be considered the registered owners or holders thereof under the
declaration for any purpose.
Payments in respect of the global capital security registered in the name of
The Depository Trust Company or its nominee will be payable by the Property
Trustee to The Depository Trust Company in its capacity as the registered
holder under the declaration. Under the terms of the declaration, the Property
Trustee will treat the persons in whose names the capital securities, including
the global capital securities, are registered as the owners thereof for the
purpose of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Property Trustee nor any agent thereof
has or will have any responsibility or liability for:
. any aspect of The Depository Trust Company's records or any
Participant's or Indirect Participant's records relating to or payments
made on account of beneficial ownership interests in the global capital
securities, or for maintaining, supervising or reviewing any of The
Depository Trust Company's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in
the global capital securities; or
. any other matter relating to the actions and practices of The Depository
Trust Company or any of its Participants or Indirect Participants.
The Depository Trust Company has advised the Trust and First Commonwealth
that its current practice, upon receipt of any payment in respect of securities
such as the capital securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in liquidation amount of beneficial interests in the
relevant security as shown on the records of The Depository Trust Company,
unless it has reason to believe it will not receive payment on such payment
date. Payments by the Participants and the Indirect Participants to the
beneficial owners of capital securities represented by global capital
securities held through such Participants will be governed by standing
instructions and customary practices and will be the responsibility of the
Participants or the Indirect Participants and will not be the responsibility of
The Depository Trust Company, the Property Trustee, the Trust or First
Commonwealth. None of the Trust, First Commonwealth or the Property Trustee
will be liable for any delay by The Depository Trust Company or any of its
Participants in identifying the beneficial owners of the capital securities,
and the Trust or First Commonwealth and the Property Trustee may conclusively
rely on and will be protected in relying on instructions from The Depository
Trust Company or its nominee for all purposes.
The Depository Trust Company will effect cross-market transfers between the
Participants in The Depository Trust Company, on the one hand, and Euroclear or
Cedel participants, on the other hand, in accordance with The Depository Trust
Company's rules on behalf of Euroclear or Cedel as the case may be, by its
respective depositary subject to compliance with the transfer restrictions
applicable to the capital securities described herein. However, such cross-
market transactions will require delivery of instructions to Euroclear or Cedel
as the case may be, by the counterparts in such system in accordance with the
rules and procedures and within the established deadlines (Brussels time) of
such system. Euroclear or Cedel, as the case may be, will, if the transaction
meets its settlement requirements, deliver instructions to its respective
depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in the relevant global capital securities in
The Depository Trust Company, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable to The
Depository Trust Company. Euroclear participants and Cedel participants may not
deliver instructions directly to the depositaries for Euroclear or Cedel.
41
<PAGE>
Because of time zone differences, the securities account of a Euroclear or
Cedel participant purchasing an interest in a global capital security from a
Participant in The Depository Trust Company will be credited, and any such
crediting will be reported to the relevant Euroclear or Cedel participant,
during the securities settlement processing day (which must be a business day
for Euroclear and Cedel) immediately following the settlement date of The
Depository Trust Company. Cash received in Euroclear or Cedel as a result of
sales of interest in a global capital security by or through a Euroclear or
Cedel participant to a Participant in The Depository Trust Company will be
received with value on the settlement date of The Depository Trust Company but
will be available in the relevant Euroclear or Cedel cash account only as of
the business day or Euroclear or Cedel following The Depository Trust Company
settlement date.
The Depository Trust Company has advised the Trust and First Commonwealth
that it will take any action permitted to be taken by a holder of capital
securities, including the presentation of capital securities for exchange as
described below, only at the direction of one or more Participants to whose
account interests in the global capital securities are credited and only in
respect of such portion of the aggregate liquidation amount of the capital
securities as to which such Participant or Participants has or have given the
direction. Also, if there is an Event of Default under the declaration, The
Depository Trust Company reserves the right to exchange the global capital
securities for legended capital securities in certificated form and to
distribute such capital securities to its Participants in accordance with its
customary procedures.
The Depository Trust Company or its nominee, as the case may be, will be
considered the sole owner or holder of the capital securities represented by
the Global Capital Securities for all purposes under the declaration so long as
The Depository Trust Company or its nominee is the registered owner of the
Global Capital Securities.
The information in this section concerning The Depository Trust Company,
Euroclear and Cedel and their book-entry systems has been obtained from sources
that the Trust and First Commonwealth believe to be reliable, but neither the
Trust nor First Commonwealth takes responsibility for the accuracy thereof.
Although The Depository Trust Company, Euroclear and Cedel have agreed to
the foregoing procedures to facilitate transfers of interest in the global
capital securities among participants in The Depository Trust Company,
Euroclear and Cedel, they are under no obligation to perform or to continue to
perform such procedures, and such procedures may be discontinued at any time.
None of the Trust, First Commonwealth or the Property Trustee will have any
responsibility for the performance by The Depository Trust Company, Euroclear
or Cedel or their respective participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Year 2000 Issues
The Depository Trust Company, 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. The Depository Trust Company 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 income payments, to
securityholders, book-entry deliveries, and settlement of trades within The
Depository Trust Company, continue to function appropriately. This program
includes a technical assessment and a remediation plan, each of which is
complete. Additionally, The Depository Trust Company's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
The Depository Trust Company'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 The Depository Trust Company's direct participants and
third party vendors from whom The Depository Trust Company licenses software
and hardware. It is also dependent on third party vendors on whom The
Depository Trust Company relies for information or the provision of services,
including telecommunication and electrical utility services providers,
42
<PAGE>
among others, The Depository Trust Company has informed the industry that it is
contacting, and will continue to contact, third party vendors from whom The
Depository Trust Company acquires services to.
. impress upon them the importance of such services being year 2000 compliant;
and
. determine the extent of their efforts for year 2000 remediation (and, as
appropriate, testing) of their services.
In addition, The Depository Trust Company is in the process of developing
contingency plans as it deems appropriate.
According to The Depository Trust Company, it has given the foregoing
information to the industry for informational purposes only, and this
information is not intended to serve as a representation, warranty or contract
modification of any kind.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A global capital security is exchangeable for capital securities in
registered certificated form if:
. The Depository Trust Company :
. notifies the Trust that it is unwilling or unable to continue as
depositary for the global capital security and the Trust thereupon
fails to appoint a successor depositary within 90 days; or
. has ceased to be a clearing agency registered under the Exchange
Act;
. First Commonwealth in its sole discretion elects to cause the issuance
of the capital securities in certificated form; or
. there shall have occurred and be continuing an Event of Default or any
event which after notice or lapse of time or both would be an Event of
Default under the declaration.
In addition, beneficial interests in a Global Capital Security may be
exchanged by or on behalf of The Depository Trust Company for certificated
capital securities upon request by The Depository Trust Company, but only upon
at least 20 days' prior written notice given to the Property Trustee in
accordance with The Depository Trust Company's customary procedures. In all
cases, certificated capital securities delivered in exchange for any global
capital security or beneficial interests therein will be registered in the
names, and issued in any approved denomination, requested by or on behalf of
The Depository Trust Company, in accordance with its customary procedures.
Exchange of Certificated Capital Securities for Book-Entry Capital Securities
Capital securities that will be issued in certificated form, may not be
exchanged for beneficial interests in any global capital security unless the
exchange occurs in connection with a transfer of such capital securities and
the transferor first delivers to the Property Trustee a written certificate, in
the form provided in the declaration, to the effect that such transfer will
comply with the appropriate transfer restrictions applicable to such capital
securities.
Payment on the Capital Securities
Payments in respect of the capital securities held in global form shall be
made to The Depository Trust Company, as the depositary for the Global Capital
Securities, which shall credit the relevant accounts at The Depository Trust
Company, on the applicable Distribution Dates, or in respect of the capital
securities that are not held by The Depository Trust Company, such payments
shall be made by check mailed to the address of the holder entitled thereto as
such address shall appear on the register. The Paying Agent shall initially be
the Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and First Commonwealth. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee, the Administrative Trustees and First Commonwealth. If
the
43
<PAGE>
Property Trustee is no longer the Paying Agent, the Administrative Trustees
shall appoint a successor to act as Paying Agent. A successor must be a bank or
trust company acceptable to the Administrative Trustees and First Commonwealth.
Registrar and Transfer Agent
The Property Trustee will act as registrar, transfer agent and exchange
agent for the capital securities.
The Property Trustee will register transfers of the capital securities
without charge by or on behalf of the Trust, but not before payment of any tax
or other governmental charges that may be imposed in connection with any
transfer or exchange. The Trust will not be required to register or cause to be
registered the transfer of any capital securities after they have been called
for redemption.
Information Concerning the Property Trustee
The Property Trustee, except when an Event of Default has occurred and is
continuing, will perform only those duties that are specifically set forth in
the declaration. During the existence of an Event of Default, the Property
Trustee must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the declaration at the request of any holder of trust
securities unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby.
Governing Law
The declaration and the capital securities provide that they will be
governed by the internal laws of the State of Delaware.
Miscellaneous
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association or a publicly-traded
partnership taxable as a corporation for United States federal income tax
purposes. The Administrative Trustees are also authorized and directed to
operate the Trust so that the Trust will be classified as a grantor trust and
the debentures will be treated as indebtedness of First Commonwealth for United
States federal income tax purposes. In this connection, First Commonwealth and
the Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the Trust or the declaration,
that First Commonwealth and the Administrative Trustees determine in their
discretion to be necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of the holders of the
trust securities.
Holders of the trust securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
44
<PAGE>
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The original debentures were, and the exchange debentures will be, issued
under the terms of an indenture, as supplemented from time to time, between
First Commonwealth and The Chase Manhattan Bank, as trustee (the "Debenture
Trustee"). The indenture will be qualified under the Trust Indenture Act, upon
effectiveness of the registration statement. See "The Exchange Offer." Upon
effectiveness of the exchange offer registration statement or the shelf
registration statement, the indenture will be subject to and governed by the
Trust Indenture Act. The following description of the material terms and
provisions of the debentures and the indenture is not complete and, where
reference is made to particular provisions of the indenture, such provisions,
including the definitions of certain terms, some of which are not otherwise
defined herein, are qualified in their entirety by reference to all of the
provisions of the indenture and the Trust Indenture Act.
General Description of the Junior Subordinated Debentures
Concurrently with the issuance of the capital securities, the Trust invested
the proceeds thereof, together with the consideration paid by First
Commonwealth for the common securities, in debentures issued by First
Commonwealth. The debentures will bear interest at the annual rate of 9.50% of
the principal amount thereof, payable, subject to the right of First
Commonwealth to defer interest payments on the debentures, semi-annually in
arrears on March 1 and September 1 of each year (each, an "Interest Payment
Date"), commencing March 1, 2000, to the persons in whose name the debentures
are registered at the close of business on the regular record date for the
Interest Payment Date. The regular record date will be the fifteenth day of the
month which precedes the month in which the relevant payment date falls. It is
anticipated that, until the liquidation, if any, of the Trust, each debenture
will be held in the name of the Property Trustee in trust for the benefit of
the holders of the trust securities. The amount of interest payable to holders
for any period will be computed on the basis of a 360-day year of twelve 30-day
months and, for any period of less than a full calendar month, the number of
days elapsed in such month. If any date on which interest is payable on the
debentures is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day, without
any interest or other payment in respect of the distribution subject to delay,
in each case with the same force and effect as if made on the scheduled payment
date. Accrued interest that is not paid on the applicable Interest Payment Date
will bear additional interest on the amount to the extent permitted by law at
the rate per annum of 9.50% thereof, compounded semi-annually.
The term "interest," as used in this prospectus, includes semi-annual
interest payments, interest on semi-annual interest payments not paid on the
applicable Interest Payment Date and Additional Sums, as defined in this
prospectus, as applicable.
The original debentures were, and the exchange debentures will be, issued in
denominations of $1,000 and integral multiples in excess thereof. The
debentures will mature on September 1, 2029.
The debentures rank equal to all other junior subordinated debentures to be
issued by First Commonwealth pursuant to the indenture with substantially
similar subordination terms ("Other Debentures"), which will be issued and
sold, if at all, to other trusts to be established by First Commonwealth (if
any), in each case similar to the Trust ("Other Trusts") and will be unsecured
and will rank subordinate and junior in right of payment to the extent and in
the manner set forth in the indenture to all Senior Indebtedness of First
Commonwealth. See "--Subordination of the Debentures" below.
First Commonwealth is a non-operating holding company and almost all of the
operating assets of First Commonwealth and its consolidated subsidiaries are
owned by its subsidiaries. First Commonwealth relies primarily on dividends
from such subsidiaries to meet its obligations. First Commonwealth is a legal
entity separate and distinct from its banking and non-banking affiliates. The
principal sources of First Commonwealth's income are dividends, interest and
fees from its banking subsidiaries. The subsidiary banks are subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other
45
<PAGE>
transactions with, First Commonwealth and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent
First Commonwealth and such other affiliates from borrowing from the subsidiary
banks unless the loans are secured by various types of collateral. Further,
secured loans, other transactions and investments by any of the subsidiary
banks are generally limited in amount as to First Commonwealth and as to each
of such other affiliates to 10% of a subsidiary bank's capital and surplus and
as to First Commonwealth and all of such other affiliates to an aggregate of
20% of the subsidiary bank's capital and surplus. In addition, payment of
dividends to First Commonwealth by the subsidiary banks is subject to ongoing
review by banking regulators and is subject to various statutory limitations
and in certain circumstances requires approval by banking regulatory
authorities. Because First Commonwealth is a holding company, its right to
participate in any distribution of assets of any subsidiary upon the
subsidiary's liquidation or reorganization or otherwise, is subject to the
prior claims of creditors of the subsidiary, except to the extent First
Commonwealth may itself be recognized as a creditor of that subsidiary.
Accordingly, the debentures will be effectively subordinated to all existing
and future liabilities, including deposits, of First Commonwealth's
subsidiaries, and holders of debentures should look only to the assets of First
Commonwealth for payments on the debentures. The indenture does not limit the
incurrence or issuance of other secured or unsecured debt of First
Commonwealth, including Senior Indebtedness. See "--Subordination of the
Debentures" below.
Form, Registration and Transfer
If the debentures are distributed to the holders of the trust securities,
the debentures may be represented by one or more global certificates registered
in the name of Cede & Co. as the nominee of The Depository Trust Company. The
depositary arrangements for such debentures are expected to be substantially
similar to 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, redemptions and other notices and other
matters, see "Description of Capital Securities--Form of Capital Securities."
Payment and Paying Agents
Payment of principal of and premium, if any, and any interest on debentures
will be made at the office of the Debenture Trustee in the City of New York or
at the office of such Paying Agent or Paying Agents as First Commonwealth may
designate from time to time, except that at the option of First Commonwealth
payment of any interest may be made, except in the case of debentures in global
form,
. by check mailed to the address of the person entitled thereto as such
address shall appear in the register for debentures; or
. by transfer to an account maintained by the person entitled thereto as
specified in such register, provided that proper transfer instructions
have been received by the relevant record date.
Payment of any interest on any debenture will be made to the person in whose
name the debenture is registered at the close of business on the record date
for such interest, except in the case of defaulted interest. First Commonwealth
may at any time designate additional Paying Agents or rescind the designation
of any Paying Agent; however, First Commonwealth will at all times be required
to maintain a Paying Agent in each place of payment for the debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or then
held by First Commonwealth in trust, for the payment of the principal of and
premium, if any, or interest on any debenture and remaining unclaimed for two
years after such principal and premium, if any, or interest has become due and
payable shall, at the request of First Commonwealth, be repaid to it and the
holder of the debenture shall thereafter look, as a general unsecured creditor,
only to First Commonwealth for payment.
46
<PAGE>
First Commonwealth's Option to Extend Interest Payment Date
So long as no Debenture Event of Default has occurred and is continuing,
First Commonwealth may under the indenture, defer interest payments on the
debentures at any time or from time to time for a period not exceeding 10
consecutive semi-annual periods with respect to each Extension Period. However,
no Extension Period may end on a day other than an interest payment date or
extend beyond the Stated Maturity Date. At the end of an Extension Period,
First Commonwealth must pay all interest then accrued and unpaid together with
interest thereon accrued at the annual rate of 9.50%, compounded semi-annually
from the relevant Interest Payment Date, to the extent permitted by applicable
law. During an Extension Period, interest will continue to accrue and, if the
debentures have been distributed to holders of the trust securities, holders of
debentures, or holders of the trust securities while trust securities are
outstanding, will be required to accrue interest income for United States
federal income tax purposes prior to the receipt of cash attributable to such
income. See "Federal Income Tax Consequences--Interest Income and Original
Issue Discount."
During any Extension Period, First Commonwealth may not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its
capital stock (which includes common and preferred stock);
. make any payment of principal interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities (including any Other
Debentures) that rank equal to or junior in right of payment to the
debentures; or
. make any guarantee payments with respect to any guarantee by it of any
securities of any of its subsidiaries (including Other Guarantees) if
such guarantee ranks equal to or junior in right of payment to the
debentures;
provided, however, that the foregoing restriction does not apply to the
following:
. dividends or distributions in shares of or options, warrants or
rights to subscribe for or purchase shares of its common stock;
. any declaration of a dividend in connection with the implementation
of a stockholders' 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;
. payments under the capital securities guarantee;
. as a direct result of and only to the extent required in order to
avoid the issuance of fractional shares of capital stock following,
a reclassification of its capital stock or exchange or conversion of
one class or series of its capital stock for another class or series
of its capital stock;
. the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged; and
. purchases of common stock related to the issuance of common stock or
rights under any of its benefit plans for its directors, officers or
employees or its dividend reinvestment plan.
Prior to the termination of any Extension Period, First Commonwealth may
extend the period. However, it cannot do so if the extension causes the
Extension Period to exceed 10 consecutive semi-annual periods or to extend
beyond the Stated Maturity Date. Upon the termination of any Extension Period
and the payment of all amounts then due on any Interest Payment Date, First
Commonwealth 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 of the period. First Commonwealth must give the Property
Trustee, the Administrative Trustees and the Debenture Trustee notice of its
election of any Extension Period, or an extension of the period, at least five
Business Days prior to the earlier of the date the distributions on the trust
securities would have
47
<PAGE>
been payable except for the election to begin or extend such Extension Period,
or the date the Administrative Trustees are required to give notice to any
securities exchange or to holders of capital securities of the record date or
the date such distributions are payable. However, it must give this notice
under all circumstances not less than five Business Days prior to such record
date.
The Debenture Trustee will give notice of First Commonwealth's election to
begin or extend a new Extension Period to the holders of the capital
securities. There is no limitation on the number of times that First
Commonwealth may elect to begin an Extension Period.
Optional Redemption
The debentures will be redeemable, in whole or in part, at the option of
First Commonwealth, on or after the Initial Optional Prepayment Date, subject
to First Commonwealth having received prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve. The debentures will be redeemable at a prepayment price (the "Optional
Prepayment Price") equal to the percentage of the outstanding principal amount
of the debentures specified below, plus, in each case, accrued interest thereon
to the date of prepayment if redeemed during the 12-month period beginning
September 1 of the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2009........................................ 104.750%
2010........................................ 104.275
2011........................................ 103.800
2012........................................ 103.325
2013........................................ 102.850
2014........................................ 102.375
2015........................................ 101.900
2016........................................ 101.425
2017........................................ 100.950
2018........................................ 100.475
2019 and thereafter......................... 100.000%
</TABLE>
Optional Redemption Upon the Occurrence of a Special Event
If a Special Event occurs and is continuing, First Commonwealth may, at any
time prior to the Initial Optional Prepayment Date, within 90 days after the
occurrence of the Special Event, at its option and subject to receipt of prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, prepay the debentures in whole
but not in part, at a prepayment price (the "Special Event Prepayment Price")
equal to the greater of:
. 100% of the principal amount of such debentures, plus accrued and unpaid
interest thereon to the date of prepayment; or
. the sum, as determined by a Quotation Agent, as defined below, of the
present values of the principal amount and premium payable as part of
the Optional Prepayment Price with respect to an optional redemption of
such debentures on the Initial Optional Prepayment Date, together with
scheduled payments of interest from the prepayment date to the Initial
Optional Prepayment Date, in each case discounted to the prepayment date
on a semi-annual basis, assuming a 360-day year consisting of twelve 30-
day months, at the Adjusted Treasury Rate, as defined below, plus
accrued and unpaid interest thereon to the date of prepayment.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the case
may be.
48
<PAGE>
"Tax Event" means the receipt by First Commonwealth and the Trust of an
opinion of independent counsel experienced in such matters to the effect that,
as a result of any amendment to, or change, including any announced prospective
change, in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
pronouncement or decision is announced on or after September 8, 1999, there is
more than an insubstantial risk that:
. the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income
received or accrued on the debentures;
. interest payable by First Commonwealth on the debentures is not, or
within 90 days of the date of such opinion will not be, deductible by
First Commonwealth, in whole or in part, for United States federal
income tax purposes; or
. 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.
"Regulatory Capital Event" means that First Commonwealth 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 under such laws of
the United States or any rules, guidelines or policies of the Federal Reserve
or any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after September 8, 1999, the
capital securities do not constitute, or within 90 days of the date of such
opinion, will not constitute, Tier 1 Capital or its then equivalent. However,
the distribution of the debentures in connection with a termination of the
Trust by First Commonwealth will not in and of itself constitute a Regulatory
Capital Event.
"Adjusted Treasury Rate" means, with respect to any prepayment date, the
rate per annum equal to
. the yield, under the heading which represents the average for the
immediately prior week, appearing in the most recently-published Federal
Reserve statistical release designated "H.15(519)" on the Federal
Reserve's website at www.Federalreserve.gov, or any successor
publication which is published weekly by the Federal Reserve, and which
establishes yields on actively-traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity date corresponding to the Initial Optional
Prepayment Date. If no maturity date is within three months before or
after the Initial Optional Prepayment Date, yields for the two published
maturities most closely corresponding to the Initial Optional Prepayment
Date shall be interpolated and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month, or
. if such release, or any successor release, is not published during the
week preceding the calculation date or does not contain such yields, the
rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, as defined below, assuming a price for
the Comparable Treasury Issue, expressed as a percentage of its
principal amount, equal to the Comparable Treasury Issue for such
prepayment date, plus in each case (A) 2.75% if such prepayment date
occurs on or prior to August 31, 2000 and (B) 2.25% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity date corresponding to the
Initial Optional Prepayment Date that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities with a maturity date corresponding to the
Initial Optional Prepayment Date. If no United States Treasury security has a
maturity date which is within three months before or after the Initial Optional
Prepayment Date, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the calculation
of the Adjusted Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month.
49
<PAGE>
"Quotation Agent" means the Reference Treasury Dealer appointed by First
Commonwealth.
"Reference Treasury Dealer" means:
. Bear, Stearns & Co., Inc. and its respective successors; provided,
however, that if the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), First Commonwealth shall substitute therefor another Primary
Treasury Dealer, and
. any other Primary Treasury Dealer selected by First Commonwealth.
"Comparable Treasury Price" means, with respect to any prepayment date:
. the average of the bid and asked prices for the Comparable Treasury
Issue, expressed in each case as a percentage of its principal amount,
on the third Business Day preceding such prepayment date, as set forth
in the daily statistical release, or any successor release, published by
the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities"; or
. if such release, or any successor release, is not published or does not
contain such prices on such Business Day;
. the average of five Reference Treasury Dealer Quotations, as defined
below, for such prepayment date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations; or
. if the Debenture Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any prepayment date, the average, as determined by the
Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue, expressed in each case as a percentage of its principal amount, quoted
in writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such prepayment
date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of debentures to be redeemed
at its registered address. Unless First Commonwealth defaults in payment of the
prepayment price, on and after the prepayment date interest ceases to accrue on
such debentures called for prepayment.
Additional Sums
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, First Commonwealth will pay as
additional amounts on the debentures such amounts as shall be necessary in
order that the amount of distributions then due and payable by the Trust on the
outstanding capital securities and common securities shall not be reduced as a
result of any such additional taxes, duties or other governmental charges.
Restrictions on Certain Payments
First Commonwealth will agree that if any of the following events have
occurred:
. a Debenture Event of Default;
. any event of which First Commonwealth has actual knowledge that:
. with the giving of notice or the lapse of time, or both, would be, a
Debenture Event of Default; and
50
<PAGE>
. in respect of which First Commonwealth shall not have taken
reasonable steps to cure;
. First Commonwealth is in default with respect to its payment of any
obligations under the capital securities guarantee; or
. First Commonwealth has given notice of its election of an Extension
Period, or any extension thereof, and any such extension shall be
continuing;
then First Commonwealth will not
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its
capital stock, which includes common and preferred stock,
. make any payment of principal interest or premium, if any, on or repay
or repurchase or redeem any debt securities of First Commonwealth,
including Other Debentures, that rank equal to or junior in right of
payment to the debentures, or
. make any guarantee payments with respect to any guarantee by First
Commonwealth of any securities of any subsidiary of First Commonwealth,
including Other Guarantees, if such guarantee ranks equal to or junior
in right of payment to the debentures.
However, the foregoing limitation does not apply to:
. dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of common stock of First
Commonwealth;
. any declaration of a dividend in connection with the implementation of a
stockholders' 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;
. payments under the capital securities guarantee;
. as a direct result of, and only to the extent required in order to avoid
the issuance of fractional shares of capital stock following a
reclassification of First Commonwealth's capital stock or the exchange
or conversion of one class or series of its capital stock for another
class or series of its capital stock;
. the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged; and
. purchases of common stock related to the issuance of common stock or
rights under any of First Commonwealth's benefit plans for its
directors, officers or employees or any of its dividend reinvestment
plans.
Other Obligations
First Commonwealth also will agree:
. to maintain 100 percent ownership of the common securities; provided,
however, that any permitted successor of First Commonwealth under the
indenture may succeed to First Commonwealth's ownership of the common
securities;
. to use its reasonable efforts to cause the Trust:
. to remain a business trust, except in connection with the
distribution of debentures to the holders of trust securities in
liquidation of the Trust, the redemption of all of the trust
securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the declaration of the Trust;
and
51
<PAGE>
. to continue to be treated as a grantor trust and not to be
classified as an association taxable as a corporation or a
partnership for United States federal income tax purposes; and
. to use its reasonable efforts to cause each holder of trust securities
to be treated as owning an undivided beneficial interest in the
debentures.
Debenture Events of Default
The indenture provides that any one or more of the following events with
respect to the debentures constitutes a "Debenture Event of Default," whatever
the reason for such Debenture 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:
. failure for 30 days to pay any interest on the debentures or any Other
Debentures, when due, subject to the deferral of any due date in the
case of an Extension Period; or
. failure to pay any principal or premium, if any, on the debentures or
any Other Debentures, when due, whether at maturity, upon redemption, by
declaration of acceleration of maturity or otherwise; or
. failure to observe or perform in any material respect certain other
covenants contained in the indenture for 90 days after written notice to
First Commonwealth from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of debentures; or
. certain events in bankruptcy, insolvency or reorganization of First
Commonwealth.
The holders of a majority in aggregate outstanding principal amount of the
debentures have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee. The Debenture
Trustee or the holders of not less than 25% in aggregate outstanding principal
amount of the debentures may declare the principal due and payable immediately
upon a Debenture Event of Default. The holders of a majority in aggregate
outstanding principal amount of the debentures may annul this declaration and
waive the default if the default, other than the nonpayment of the principal of
the debentures which has become due solely by such acceleration, has been cured
and a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee.
The holders of a majority in aggregate outstanding principal amount of the
debentures affected thereby may, on behalf of the holders of all the
debentures, waive any past default except a default in the payment of principal
of or premium, if any, on or interest, unless the default has been cured and a
sum sufficient to pay all matured installments of interest and premium, if any,
and principal due otherwise than by acceleration has been deposited with the
Debenture Trustee, or a default in respect of a covenant or provision which
under the indenture cannot be modified or amended without the consent of the
holder of each outstanding debenture.
The indenture requires the annual filing by First Commonwealth with the
Debenture Trustee of a certificate as to the absence of certain defaults under
the indenture.
The indenture provides that the Debenture Trustee may withhold notice of a
Debenture Event of Default from the holders of the debentures, except a
Debenture Event of Default in payment of principal of or premium, if any, or
interest on the debentures, if the Debenture Trustee considers it in the
interest of such holders to do so.
Enforcement of Certain Rights by Holders of Capital Securities
If a Debenture Event of Default occurs and is continuing and the event is
attributable to First Commonwealth's failure to pay interest or premium, if
any, on or principal of the debentures on the due date, a holder of capital
securities may directly institute a proceeding against First Commonwealth with
respect to the
52
<PAGE>
debentures for enforcement of payment. First Commonwealth may not amend the
indenture to remove the foregoing right of a holder of capital securities to
bring a direct action against First Commonwealth without the prior written
consent of the holders of all of the capital securities. Even if First
Commonwealth makes payments to a holder of capital securities in connection
with a direct action, it will remain obligated to pay the principal of or
premium, if any, or interest on the debentures. Moreover, First Commonwealth
will be subrogated to the rights of the holder of such capital securities with
respect to payments on the capital securities to the extent of any payments
made by it to such holder in any direct action.
The holders of the capital securities will not be able to exercise directly
any remedies, other than those set forth in the preceding paragraph, available
to the holders of the debentures unless there shall have been an Event of
Default under the declaration. See "Description of Capital Securities--Events
of Default; Notice."
Consolidation, Merger or Sale of Assets of First Commonwealth
The indenture provides that First Commonwealth shall not consolidate with or
merge into any other person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any person, and no
person shall consolidate with or merge into First Commonwealth or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to First Commonwealth, unless:
. in case First Commonwealth consolidates with or merges into another
person or conveys or transfers its properties and assets substantially
as an entirety to any person, the successor person is organized under
the laws of the United States or any State or the District of Columbia,
and such successor person expressly assumes First Commonwealth's
obligations on the debentures;
. immediately after giving effect thereto, no Debenture Event of Default,
and no event which, after notice or lapse of time or both, would become
a Debenture Event of Default, shall have occurred and be continuing; and
. certain other conditions as prescribed in the indenture are met.
The general provisions of the indenture do not afford holders of the
debentures protection in the event of a highly leveraged or other transaction
involving First Commonwealth that may adversely affect holders of the
debentures.
Modification of the Indenture
From time to time First Commonwealth and the Debenture Trustee may, without
the consent of the holders of debentures, amend, waive or supplement the
indenture for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies or enabling First Commonwealth and the
Trust to conduct the Exchange Offer discussed under the caption "The Exchange
Offer." However, First Commonwealth and the Debenture Trustee may only do so if
the action does not materially adversely affect the interest of the holders of
debentures. The indenture contains provisions permitting First Commonwealth and
the Debenture Trustee, with the consent of the holders of a majority in
principal amount of the debentures, to modify the indenture in a manner
affecting the rights of the holders of debentures; provided, however, that no
such modification may, without the consent of the holders of each outstanding
Junior Subordinated Debenture so affected:
. change the Stated Maturity Date;
. reduce the principal amount of the debentures or reduce the rate or
extend the time of payment of interest thereon; or
. reduce the percentage of principal amount of debentures the holders of
which are required to consent to any such modification of the indenture.
53
<PAGE>
In addition, First Commonwealth and the Debenture Trustee may execute,
without the consent of any holder of debentures, any supplemental indenture for
the purpose of creating any Other Debentures.
Satisfaction and Discharge of the Indenture
The indenture provides that when, among other things, all debentures not
previously delivered to the Debenture Trustee for cancellation:
. have become due and payable; or
. will become due and payable at maturity within one year; and
. First Commonwealth deposits or causes to be deposited with the Debenture
Trustee funds, in trust, for the purpose and in an amount sufficient to
pay and discharge the entire indebtedness on the debentures not
previously delivered to the Debenture Trustee for cancellation, for the
principal and premium, if any, and interest to the date of the deposit
or to the Stated Maturity Date, as the case may be;
then the indenture will cease to be of further effect, except as to First
Commonwealth's obligations to pay all other sums due pursuant to the indenture
and to provide the officers' certificates and opinions of counsel described
therein, and First Commonwealth will be deemed to have satisfied and discharged
the indenture.
Subordination of the Debentures
In the indenture, First Commonwealth covenanted and agreed that any
debentures issued under the indenture will be subordinate and junior in right
of payment to all Senior Indebtedness to the extent provided in the indenture.
If any payment or distribution of assets is made to creditors upon any
termination, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshalling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of First Commonwealth, the holders of Senior Indebtedness
will first be entitled to receive payment in full of all Senior Indebtedness
before the holders of debentures will be entitled to receive or retain any
payment under the debentures.
If the maturity of debentures is accelerated, the holders of all Senior
Indebtedness outstanding at the time of the acceleration will first be entitled
to receive payment in full of all Senior Indebtedness before the holders of
debentures will be entitled to receive or retain any payment under the
debentures.
No payments on account of principal or premium, if any, or interest, if any,
in respect of the debentures may be made if any of the following events shall
have occurred and be continuing:
. a default in any payment with respect to Senior Indebtedness;
. an event of default with respect to any Senior Indebtedness resulting in
the acceleration of the maturity thereof; or
. if any judicial proceeding pending with respect to any such default.
"Indebtedness" shall mean:
. every obligation of First Commonwealth for money borrowed;
. every obligation of First Commonwealth evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
. every reimbursement obligation of First Commonwealth with respect to
letters of credit, bankers' acceptances or similar facilities issued for
its account;
54
<PAGE>
. every obligation of First Commonwealth issued or assumed as the deferred
purchase price of property or services, but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business;
. every capital lease obligation of First Commonwealth;
. all indebtedness of First Commonwealth whether incurred on or prior to
the date of the indenture or thereafter incurred, for claims in respect
of derivative products including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar
arrangements; and
. every obligation of the type referred to above of another person and all
dividends of another person the payment of which, in either case, First
Commonwealth has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Debentures" shall mean
Indebtedness, whether outstanding on the date of execution of the indenture or
thereafter created, assumed or incurred, which specifically by its terms ranks
equally with and not prior to the debentures in the right of payment upon the
happening of the dissolution or winding-up or termination or reorganization of
First Commonwealth. The securing of any Indebtedness, otherwise constituting
Indebtedness Ranking on a Parity with the Debentures, shall not be deemed to
prevent such Indebtedness from constituting Indebtedness Ranking on a Parity
with the Debentures.
"Indebtedness Ranking Junior to the Debentures" shall mean any Indebtedness,
whether outstanding on the date of execution of the indenture or thereafter
created, assumed or incurred, which specifically by its terms ranks junior to
and not equally with or senior to the debentures, and any other Indebtedness
Ranking on a Parity with the Debentures, in right of payment upon the happening
of the dissolution or winding-up or termination or reorganization of First
Commonwealth. The securing of any Indebtedness, otherwise constituting
Indebtedness Ranking Junior to the Debentures, shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Debentures.
"Senior Indebtedness" shall mean all Indebtedness whether outstanding on the
date of execution of the indenture or thereafter created, assumed or incurred,
except Indebtedness Ranking on a Parity with the Debentures or Indebtedness
Ranking Junior to the Debentures, and any deferrals, renewals or extensions of
such Senior Indebtedness.
First Commonwealth is a non-operating holding company and almost all of the
operating assets of First Commonwealth are owned by First Commonwealth's
subsidiaries. First Commonwealth relies primarily on dividends from such
subsidiaries to meet its obligations for payment of principal and interest on
its outstanding debt obligations and corporate expenses. First Commonwealth is
a legal entity separate and distinct from its banking and non-banking
affiliates. The principal sources of First Commonwealth's income are dividends,
interest and fees from its subsidiary banks. The subsidiary banks are subject
to certain restrictions imposed by federal law on any extensions of credit to,
and certain other transactions with, First Commonwealth and certain other
affiliates, and on investments in stock or other securities thereof. Such
restrictions prevent First Commonwealth and such other affiliates from
borrowing from its subsidiary banks unless the loans are secured by various
types of collateral. Further, such secured loans, other transactions and
investments by any of First Commonwealth's subsidiary banks are generally
limited in amount as to First Commonwealth and as to each of such other
affiliates to 10% of a banking subsidiary's capital and surplus and as to First
Commonwealth and all of such other affiliates to an aggregate of 20% of a
subsidiary bank's capital and surplus. In addition, payment of dividends to
First Commonwealth by its subsidiary banks is subject to ongoing review by
banking regulators and is subject to various statutory limitations and in
certain circumstances requires approval by banking regulatory authorities.
Accordingly, the debentures will be effectively subordinated to all existing
and future liabilities, including deposits, of First Commonwealth's
subsidiaries. Holders of debentures should look only to the assets of First
Commonwealth for payments of principal of and premium, if any, and interest on
the debentures.
55
<PAGE>
The indenture places no limitation an the amount of additional Senior
Indebtedness that may be incurred by First Commonwealth. First Commonwealth
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness. At June 30, 1999, the aggregate outstanding Senior Indebtedness
of First Commonwealth was $862.4 million.
Governing Law
The indenture and the debentures provide that they will be governed by the
internal laws of the State of New York.
Information Concerning the Debenture Trustee
Following the exchange offer and the qualification of the indenture under
the Trust Indenture Act, the Debenture Trustee shall have and be subject to all
the duties and responsibilities specified with respect to an indenture trustee
under the Trust Indenture Act. Subject to such provisions, the Debenture
Trustee is under no obligation to exercise any of the powers vested in it by
the indenture at the request of any holder of debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
56
<PAGE>
DESCRIPTION OF THE CAPITAL SECURITIES GUARANTEE
Set forth below is a summary of the information concerning the original
capital securities guarantee; which was executed and delivered by First
Commonwealth concurrently with the issuance by the Trust of the original
capital securities for the benefit of the holders from time to time of the
capital original securities. An exchange capital securities guarantee with
terms substantially identical to the original capital securities guarantee will
be executed and delivered by First Commonwealth concurrently with the issuance
of the exchange capital securities. Unless otherwise indicated, the following
description applies to both the exchange and original capital securities
guarantees. The Chase Manhattan Bank acts as indenture trustee ("Guarantee
Trustee") under the capital securities guarantee. The capital securities
guarantee will be qualified under the Trust Indenture Act upon effectiveness of
the registration statement with respect to the capital securities guarantee.
See "The Exchange Offer." The following description of the material provisions
of the capital securities guarantee does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all of the
provisions of the capital securities guarantee, including the definitions
therein of certain terms, and the Trust Indenture Act. The Guarantee Trustee
holds the capital securities guarantee for the benefit of the holders of the
capital securities.
Terms of the Capital Securities Guarantee
Under the capital securities guarantee, First Commonwealth irrevocably
agrees to pay in full on a subordinated basis, to the extent set forth herein,
the Guarantee Payments, as defined below, to the holders of the capital
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert other than the defense of
payment. The following payments with respect to the capital securities, to the
extent not paid by or on behalf of the Trust (the "Guarantee Payments"), are
subject to the capital securities guarantee:
. any accumulated and unpaid distributions required to be paid on capital
securities, to the extent the Trust has funds on hand legally available
for the distributions;
. the redemption price with respect to any capital securities called for
redemption, to the extent that the Trust has funds on hand legally
available for the redemption; and
. upon a voluntary or involuntary dissolution, winding-up or liquidation
of the Trust, other than in connection with the distribution of the
debentures to holders of the capital securities or the redemption of all
of the capital securities, the lesser of:
. the Liquidation Distribution, to the extent the Trust has funds
legally available for the distribution; and
. the amount of assets of the Trust remaining available for
distribution to holders of capital securities upon liquidation of
the Trust after satisfaction of liabilities to creditors of the
Trust as required by applicable law.
First Commonwealth's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by it to the holders of the capital
securities or by causing the Trust to pay such amounts to such holders.
First Commonwealth, through the capital securities guarantee, the
declaration, the debentures and the indenture, taken together, fully,
irrevocably and unconditionally guarantees all of the Trust's obligations under
the capital securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the capital securities. See "Relationship Among the
Capital Securities, the Junior Subordinated Debentures and the Capital
Securities Guarantee."
57
<PAGE>
Status of the Capital Securities Guarantee; Subordination
The capital securities guarantee constitutes an unsecured obligation of
First Commonwealth and will rank subordinate and junior in right of payment to
all Senior Indebtedness in the same manner as the debentures. The capital
securities guarantee ranks equal to all other guarantees, if any, to be issued
by First Commonwealth with respect to capital securities, if any, to be issued
by Other Trusts ("Other Guarantees") and constitutes an unsecured obligation.
Because First Commonwealth is a holding company, its right to participate in
any distribution of assets of any subsidiary upon such subsidiary's liquidation
or reorganization or otherwise is subject to the prior claims of creditors of
that subsidiary, except to the extent it may be recognized as a creditor of
that subsidiary.
Accordingly, First Commonwealth's obligations under the capital securities
guarantee effectively are subordinated to all existing and future liabilities,
including deposits, of its subsidiaries, and claimants should look only to
First Commonwealth's assets for payments under the guarantee. See "Description
of Junior Subordinated Debentures--General Description of the Junior
Subordinated Debentures." The capital securities guarantee does not limit the
incurrence or issuance of other secured or unsecured debt of First
Commonwealth, including Senior Indebtedness, whether under the indenture, any
other indenture that First Commonwealth may enter into in the future or
otherwise. First Commonwealth expects from time to time to incur additional
indebtedness constituting Senior Indebtedness.
The capital securities guarantee constitutes a guarantee of payment and not
of collection. That is, the guaranteed party may institute a legal proceeding
directly against First Commonwealth to enforce its rights under the capital
securities guarantee without first instituting a legal proceeding against any
other person or entity. The capital securities guarantee is being held for the
benefit of the holders of the capital securities. The capital securities
guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not paid by the Trust or upon distribution to the holders of
the capital securities of the debentures.
Events of Default; Enforcement of the Capital Securities Guarantee
An Event of Default under the capital securities guarantee will occur upon
the failure of First Commonwealth to perform any of its payment or other
obligations thereunder, provided, however, that except with respect to a
default in payment of any Guarantee Payment, First Commonwealth shall have
received notice of default and shall not have cured such default within 60 days
after receipt of such notice. The holders of not less than 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 Guarantee Trustee in respect of the capital securities guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under the capital securities guarantee.
Any holder of the capital securities may institute a legal proceeding
directly against First Commonwealth to enforce its rights under the capital
securities guarantee without first instituting a legal proceeding against the
Trust, the Guarantee Trustee or any other person or entity.
First Commonwealth, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not First Commonwealth is in
compliance with all the conditions and covenants applicable to it under the
capital securities guarantee.
Obligations of First Commonwealth
Under the capital securities guarantee, First Commonwealth agrees that, so
long as any capital securities remain outstanding, if there shall have occurred
any event that would constitute an event of default under the capital
securities guarantee or the declaration, then First Commonwealth will not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its
capital stock, which includes common and preferred stock;
58
<PAGE>
. make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities, including any Other
Debentures, that rank equal to or junior in right of payment to the
debentures; or
. make any guarantee payments with respect to any guarantee by First
Commonwealth of any securities of any of its subsidiaries, including
Other Guarantees, if such guarantee ranks equal to or junior in right of
payment to the debentures.
However, the foregoing limitation does not apply to:
. dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, common stock of First
Commonwealth;
. any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any plan in
the future, or the redemption or repurchase of any such rights under a
plan;
. payments under the capital securities guarantee,
. as a direct result of, and only to the extent required in order to avoid
the issuance of fractional shares of capital stock following, a
reclassification of First Commonwealth's capital stock or the exchange
or conversion of one class or series of First Commonwealth's capital
stock for another class or series of First Commonwealth's capital stock;
. the purchase of fractional interests in shares of First Commonwealth's
capital stock under the conversion or exchange provisions of the capital
stock or the security being converted or exchanged; or
. purchases of common stock related to the issuance of common stock or
rights under any of First Commonwealth's benefit plans for its
directors, officers or employees or First Commonwealth's dividend
reinvestment plan.
Amendments and Assignment
The capital securities guarantee may not be amended without the prior
approval of the holders of a majority of the liquidation amount of such
outstanding capital securities. However, the foregoing will not apply to any
changes that do not materially adversely affect the rights of holders of the
capital securities. In that case, no vote will be required. The manner of
obtaining any such approval will be as set forth under "Description of Capital
Securities--Limited Voting Rights of Capital Security Holders; Modification and
Amendment of the Declaration." All guarantees and agreements contained in the
capital securities guarantee bind the successors, assigns, receivers, trustees
and representatives of First Commonwealth and shall inure to the benefit of the
holders of the capital securities then outstanding.
Termination of the Capital Securities Guarantee
The capital securities guarantee will terminate and be of no further force
and effect upon:
. full payment of the applicable redemption price of the capital
securities;
. upon full payment of the liquidation amount payable upon liquidation of
the Trust; or
. distribution of the debentures to the holders of the capital securities.
The capital securities guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the capital
securities must restore payment of any sums paid under the capital securities
or the capital securities guarantee.
59
<PAGE>
Information Concerning the Guarantee Trustee
The Guarantee Trustee will perform only duties as are specifically set forth
in the capital securities guarantee. However, after a default with respect to
the capital securities guarantee, the Guarantee Trustee must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by
the capital securities guarantee at the request of any holder of capital
securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred by the Guarantee Trustee.
Governing Law
The capital securities guarantee provides that it will be governed by the
internal laws of the State of New York.
60
<PAGE>
DESCRIPTION OF COMMON SECURITIES
All of the common securities are owned directly by First Commonwealth. The
common securities rank equal to, and payments will be made on the securities
pro rata with the capital securities. However, if an Event of Default occurs
and is continuing, the rights of First Commonwealth as holder of the common
securities to payments in respect of distributions and payments upon
liquidation, redemption or otherwise will be subordinated and rank junior to
the rights of the holders of the capital securities. See "Description of
Capital Securities--Subordination of Common Securities." First Commonwealth has
acquired common securities in a liquidation amount equal to 3% of the total
capital of the Trust. The Trust has a term of 31 years, but may terminate
earlier as provided in the declaration. The Trust's business and affairs will
be conducted by trustees appointed by First Commonwealth as the direct holder
of the common securities. The holder of the common securities or, if an Event
of Default under the declaration occurs and is continuing, the holders of a
majority in liquidation amount of the capital securities, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee. In
no event will the holders of the capital securities have the right to vote to
appoint, remove or replace the Administrative Trustees; such voting rights will
be vested exclusively in the holder of the common securities.
61
<PAGE>
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE JUNIOR
SUBORDINATED DEBENTURES AND THE CAPITAL SECURITIES GUARANTEE
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the capital securities,
to the extent the Trust has funds on hand legally available for the payment of
such distributions, are irrevocably guaranteed by First Commonwealth as and to
the extent set forth under "Description of the Capital Securities Guarantee."
Taken together, First Commonwealth's obligations under the debentures, the
indenture, the declaration and the capital securities guarantee provide, in the
aggregate, a full, irrevocable and unconditional guarantee of payments of
distributions and other amounts due on the capital securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Trust's obligations under the capital
securities. The Trust will not have sufficient funds to make the related
payments, including distributions, on the capital securities if First
Commonwealth does not make the required payments on the debentures. The capital
securities guarantee does not cover any such payment when the Trust does not
have sufficient funds on hand legally available therefor. The obligations of
First Commonwealth under the capital securities guarantee are subordinate and
junior in right of payment to all Senior Indebtedness.
Sufficiency of Payments
As long as payments of interest and other payments are made when due on the
debentures, such payments will be sufficient to cover distributions and other
payments due on the capital securities, primarily because:
. the aggregate principal amount or prepayment price of the debentures
will be equal to the sum of the liquidation amount or redemption price,
as applicable, of the capital securities and common securities;
. the interest rate and interest and other payment dates on the debentures
will match the distribution rate and distribution and other payment
dates for the capital securities;
. First Commonwealth shall pay for all and any costs, expenses and
liabilities of the Trust except the Trust's obligations to holders of
trust securities under such trust securities; and
. the declaration will provide that the Trust is not authorized to engage
in any activity that is not consistent with the limited purposes of the
Trust.
Enforcement of Rights of Holders of Capital Securities
A holder of any capital security may institute a legal proceeding directly
against First Commonwealth to enforce its rights under the capital securities
guarantee without first instituting a legal proceeding against the capital
securities guarantee Trustee, the Trust or any other person or entity.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the declaration. However, in the
event of payment defaults under, or acceleration of, Senior Indebtedness, the
subordination provisions of the indenture will provide that no payments may be
made in respect of the debentures until such Senior Indebtedness has been paid
in full or any payment default thereunder has been cured or waived. Failure to
make required payments on debentures would constitute an Event of Default under
the declaration.
Limited Purpose of the Trust
The capital securities will represent beneficial ownership interests in the
Trust, and the Trust exists for the sole purpose of issuing and selling the
trust securities, using the proceeds from the sale of the trust securities to
acquire the debentures and engaging in only those other activities necessary,
advisable or incidental to these activities.
62
<PAGE>
Rights Upon Termination of the Trust
Unless the debentures are distributed to holders of the trust securities,
upon any voluntary or involuntary termination, winding-up or liquidation of the
Trust, after satisfaction of the liabilities of creditors of the Trust as
required by applicable law, the holders of the trust securities will be
entitled to receive, out of assets held by the Trust, the Liquidation
Distribution in cash. See "Description of Capital Securities--Liquidation of
the Trust and Distribution of Debentures." Upon any voluntary or involuntary
liquidation or bankruptcy of First Commonwealth, the Property Trustee, as
holder of the debentures, would be a subordinated creditor of First
Commonwealth, subordinated in right of payment to all Senior Indebtedness as
set forth in the indenture, but entitled to receive payment in full of
principal and premium, if any and interest, before any stockholders of First
Commonwealth receive payments or distributions. Since First Commonwealth will
be the guarantor under the capital securities guarantee and will agree to pay
for all costs, expenses and liabilities of the Trust, other than the Trust's
obligations to the holders of its trust securities, the positions of a holder
of capital securities and a holder of debentures relative to other creditors
and to stockholders of First Commonwealth in the event of liquidation or
bankruptcy of First Commonwealth are expected to be substantially the same.
63
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
General
In the opinion of Drinker Biddle & Reath LLP, special federal income tax
counsel to First Commonwealth and the Trust, the following are the material
United States federal income tax consequences of the purchase, ownership and
disposition of capital securities of the Trust held as capital assets by an
owner who purchases such capital securities upon initial issuance. It does not
deal with special classes of owners such as banks, thrifts, real estate
investment trusts, regulated investment companies, insurance companies, dealers
in securities or currencies, tax-exempt investors, or persons who will hold the
capital securities as a position in a "straddle," as part of a "synthetic
security" or "hedge," as part of a "conversion transaction" or other integrated
investment, or as other than a capital asset. This summary also does not
address the tax consequences to persons who have a functional currency other
than the U.S. dollar or the tax consequences to shareholders, partners or
beneficiaries of an owner of capital securities. Further, it does not include
any description of any federal alternative minimum tax consequences or the tax
laws of any state or local government or of any foreign government that may be
applicable to the capital securities. This summary is based on the Code,
Treasury regulations thereunder and the administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. An opinion of tax counsel is not
binding on the Internal Revenue Service or the courts. No rulings have been or
are expected to be sought from the IRS with respect to any of the transactions
described herein and no assurance can be given that the IRS will not take
contrary positions. Moreover, no assurance can be given that any of the
opinions expressed herein will not be challenged by the IRS and, if challenged,
that such a challenge would not be successful.
Exchange of Capital Securities and Debentures
The exchange of the original capital securities for the exchange capital
securities, and the exchange of the original debentures for the exchange
debentures, should not be taxable events. Because the Trust should constitute a
grantor trust for federal income tax purposes, each owner of capital securities
should, in substance, be treated as owning an undivided interest in the assets
of the Trust. The exchange of the original capital securities for the exchange
capital securities will not change that ownership interest. Moreover, the
exchange of the debentures should not constitute a taxable exchange, because
the exchange debentures will not differ materially in kind or extent from the
original debentures and, even if they did differ, the exchange should qualify
as a recapitalization. Accordingly, an owner of capital securities should not
recognize any gain or loss on the exchanges, the issue price of the exchange
debentures should be the same as the issue price of the original debentures,
and each owner's adjusted tax basis and holding period for the exchange capital
securities should be the same as for the original capital securities
immediately before the exchange.
Classification of the Debentures as Indebtedness
In connection with the issuance of the original debentures, tax counsel
rendered its opinion generally to the effect that, under then current law and
assuming full compliance with the terms of the indenture and certain other
documents, and based on certain facts and assumptions contained in such
opinion, the debentures will be classified for United States federal income tax
purposes as indebtedness of First Commonwealth. First Commonwealth, the Trust
and the owners of the capital securities by acceptance of a beneficial interest
in a capital security will agree to treat the debentures as indebtedness for
all United States federal income tax purposes.
Classification of the Trust as a Grantor Trust
In connection with the issuance of the original capital securities, tax
counsel rendered its opinion generally to the effect that, under then current
law and assuming full compliance with the terms of the declaration and the
indenture and certain other documents, and based on certain facts and
assumptions contained in such opinion, the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
64
<PAGE>
association or publicly-traded partnership taxable as a corporation.
Accordingly, for United States federal income tax purposes, each owner of
capital securities generally will be considered the owner of an undivided
interest in the debentures, and each owner will be required to include in its
gross income any interest or original issue discount accrued with respect to
its allocable share of those debentures.
Interest Income and Original Issue Discount
Under applicable Treasury regulations, a "remote" contingency that stated
interest will not be timely paid will be ignored in determining whether a debt
instrument is issued with original issue discount. First Commonwealth believes
that the likelihood of its exercising its option to defer payments of interest
is "remote" because exercising that option would prevent First Commonwealth
from declaring dividends on any class of its equity securities. Accordingly,
First Commonwealth intends to take the position, based on the advice of tax
counsel, that the debentures will not be considered to be issued with original
issue discount and, accordingly, stated interest on the debentures generally
will be taxable to an owner as ordinary income at the time it is paid or
accrued in accordance with such owner's method of tax accounting.
Under the Treasury regulations, if First Commonwealth exercises its option
to defer payments of interest, the debentures will at that time be treated as
issued with original issue discount, and all stated interest on the debentures
will thereafter be treated as original issue discount as long as the debentures
remain outstanding. In that event, all of an owner's taxable interest income
with respect to the debentures will thereafter be accounted for on an economic
accrual basis regardless of the owner's method of tax accounting, and actual
distributions of stated interest will not be reported as taxable income.
Consequently, a holder of capital securities would be required to include in
gross income the original issue discount even though First Commonwealth would
not make actual cash payments during an Extension Period. Moreover, under the
Treasury regulations, if the option to defer the payment of interest were
determined not to be "remote," the debentures would be treated as having been
originally issued with original issue discount. In such event, all of an
owner's taxable interest income with respect to the debentures would be
accounted for on an economic accrual basis regardless of the owner's method of
tax accounting, and actual distributions of stated interest would not be
reported as taxable income.
The Treasury regulations have not yet been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take a
position contrary to tax counsel's interpretation.
Because income on the capital securities will constitute interest or
original issue discount, corporate owners of the capital securities will not be
entitled to a dividends-received deduction with respect to any income
recognized with respect to the capital securities.
Receipt of Debentures or Cash Upon Liquidation of the Trust
First Commonwealth will have the right under certain circumstances to
liquidate the Trust and cause the debentures to be distributed to the holders
of the trust securities. Under current law, a distribution of debentures, for
United States federal income tax purposes, will generally be treated as a
nontaxable event to each owner of trust securities, and each such owner will
have an aggregate tax basis in the debentures equal to such owner's aggregate
tax basis in its capital securities. An owner's holding period in the
debentures so received in liquidation of the Trust will include the period
during which the capital securities were owned by such owner. If, however, the
Trust were characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of its dissolution, the
distribution of the debentures would constitute a taxable event to owners of
capital securities and an owner's holding period in debentures would begin on
the date such debentures were received.
Under certain circumstances described in "Description of Capital
Securities," the debentures may be redeemed for cash and the proceeds of the
redemption distributed to holders in redemption of their capital securities.
Under current law, such a redemption would, for United States federal income
tax purposes, constitute a taxable disposition of the redeemed capital
securities, and an owner of capital securities would recognize gain or loss as
if it sold such redeemed capital securities for cash. See "--Sales of Capital
Securities" below.
65
<PAGE>
Sales of Capital Securities
An owner who sells capital securities, including a redemption of the capital
securities either on the stated maturity date or upon an optional redemption of
the debentures by First Commonwealth, will recognize gain or loss equal to the
difference between its adjusted tax basis in the capital securities and the
amount realized on the sale of such capital securities (other than with respect
to accrued and unpaid interest which has not yet been included in income, which
will be treated as ordinary income). An owner's adjusted tax basis in the
capital securities generally will be its initial purchase price increased by
the original issue discount, if any, previously includable in such owner's
gross income to the date of disposition and decreased by payments, if any,
received on the capital securities in respect of the original issue discount.
Gain or loss on a sale of capital securities generally will be a capital gain
or loss and generally will be a long-term capital gain or loss if the capital
securities have been held for more than one year.
The capital securities may trade at a price that does not accurately reflect
the value of accrued but unpaid interest with respect to the underlying
debentures. An owner who uses the accrual method of accounting for tax purposes
(and a cash method owner, if the debentures are deemed to have original issue
discount) who disposes of the owner's capital securities between record dates
for payments of distributions thereon will be required to include accrued but
unpaid interest on the debentures through the date of disposition in income as
ordinary income (i.e., interest or, possibly, original issue discount), and to
add such amount to such owner's adjusted tax basis in such owner's pro rata
share of the underlying debentures deemed disposed of. To the extent the
selling price is less than the owner's adjusted tax basis (which will include
all accrued but unpaid interest), an owner will recognize a capital loss.
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes.
United States Alien Holders
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is not a U.S. Holder
for United States federal income tax purposes. A "U.S. Holder" is a citizen or
individual resident (or is treated as a citizen or individual resident) of the
United States for federal income tax purposes, a corporation or partnership
created or organized (or treated as created or organized for federal income tax
purposes) in or under the laws of the United States or any State thereof,
including the District of Columbia, an estate the income of which is subject to
United States federal income tax regardless of its source or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the Trust.
Under present United States federal income tax laws:
(i) payments by the Trust or any of its paying agents to any United States
Alien Holder of a capital security will not be subject to United States federal
withholding tax; provided that, (a) the beneficial owner of the capital
security does not actually or constructively own 10 percent or more of the
total combined voting power of all classes of stock of First Commonwealth
entitled to vote, (b) the beneficial owner of the capital security is not a
controlled foreign corporation that is related to First Commonwealth through
stock ownership, and (c) either (A) the beneficial owner of the capital
security certifies to the Trust or its agent on an IRS Form W-8 (or a
substantially similar form), under penalties of perjury, that it is a United
States Alien Holder and provides its name and address or (B) a securities
clearing organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or business (a
"Financial Institution"), and holds the capital security in such capacity,
certifies to the Trust or its agent, under penalties of perjury, that such
statement has been received from the beneficial owner by it or by a Financial
Institution between it and the beneficial owner and furnishes the Trust or its
agent with a copy thereof; and
(ii) a United States Alien Holder of a capital security will generally not
be subject to United States federal withholding tax on any gain realized upon
the sale or other disposition of a capital security.
66
<PAGE>
A United States Alien Holder who owns capital securities in connection with
the active conduct of a United States trade or business will be subject to
income tax on all income and gains recognized with respect to its proportionate
share of the debentures.
Information Reporting to Holders
Generally, income on the capital securities will be reported to holders on
Forms 1099, which forms should be mailed to holders of capital securities by
January following each calendar year.
Backup Withholding
Payments made on, and proceeds from the sale of, the capital securities may
be subject to a "backup" withholding tax of 31 percent unless the holder
complies with certain identification requirements. Any withheld amounts will be
allowed as a credit against the holder's United States federal income tax,
provided the necessary information is provided to the IRS.
New Withholding Regulations
On October 6, 1997, the Treasury Department issued new regulations, which
make certain modifications to the withholding, backup withholding and
information reporting rules described above. The new regulations attempt to
unify certification requirements and modify reliance standards. The new
regulations will generally be effective for payments made after December 31,
2000, subject to certain transition rules. Under these new withholding tax
regulations, IRS Forms W-8BEN and W-8ECI are now applicable, rather than IRS
Form W-8, although during 1999 the old forms (IRS Forms W-8, 4224 and 1001) may
continue to be used. If an old form is used during 1999, it will continue to be
effective until December 31, 2000.
The new withholding tax regulations also permit the shifting of primary
responsibility for withholding to certain qualified financial intermediaries
acting on behalf of beneficial owners. Although a beneficial owner will still
be required to submit a From W-8 or its equivalent to such an intermediary, the
intermediary generally will not be required to forward a Form W-8 or its
equivalent received from a beneficial owner to the U.S. withholding agent as
under prior procedures. Instead, the intermediary to the extent that it is a
foreign intermediary will be required to submit Form W-8IMY (Certificate of
Foreign Intermediary, Foreign Partnership, or Certain U.S. Branches for United
States Tax Withholding) to the withholding agent to make representations that
the intermediary is not the beneficial owner of the payments it receives and
about the status of the beneficial owner(s). However, if a foreign intermediary
is a nonqualified intermediary, it will still need to transmit to the ultimate
U.S. withholding agent a copy of the Form W-8 of the beneficial owner or its
equivalent, as under prior procedures.
Holders should also note that the foregoing discussion does not deal with
all aspects of the new withholding tax regulations and other United States
federal tax matters that may be potentially relevant to them. Prospective
investors are urged to consult their own tax advisors regarding the new
regulations.
The United States federal income tax discussion set forth above is included
for general information only and may not be applicable depending upon your
particular situation. You should consult your tax advisors with respect to 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 and the possible effects of changes in United States federal
or other tax laws.
67
<PAGE>
PENNSYLVANIA CORPORATE LOANS TAX
First Commonwealth will be required to withhold the Pennsylvania Corporate
Loans Tax from interest payments on the portion of debentures which are held by
the Trust for the benefit of owners of capital securities who are subject to
the tax, principally, individuals, partnerships and unincorporated associations
resident in Pennsylvania. Any amounts so withheld will reduce, to the extent of
such withholding, distributions payable to such holders of capital securities.
The tax, at the current rate of four mills on each dollar of nominal value
($4.00 per $1,000), will be withheld from any such interest payment at the
annual rate of $4.00 per $1,000 principal amount of debentures.
ERISA CONSIDERATIONS
First Commonwealth, the obligor with respect to the debentures held by the
Trust, and its affiliates and the Property Trustee may be considered a "party
in interest," within the meaning of ERISA, or a "disqualified person," within
the meaning of Section 4975 of the Code, with respect to many employee benefit
plans that are subject to ERISA. Any purchaser proposing to acquire capital
securities with assets of any plan should consult with its counsel. The
purchase and/or holding of capital securities by a plan that is subject to the
fiduciary responsibility provisions of ERISA and/or the prohibited transaction
provisions of Section 4975 of the Code, including individual retirement
arrangements and other plans described in Section 4975(e)(1) of the Code, and
with respect to which First Commonwealth, the Property Trustee or any affiliate
is a service provider, or otherwise is a party in interest or a disqualified
person, may constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code, unless such capital securities are acquired pursuant
to and in accordance with an applicable exemption, such as Prohibited
Transaction Class Exemption ("PTCE") 84-14 (an exemption for certain
transactions determined by an independent qualified professional asset
manager), PTCE 91-38 (an exemption for certain transactions involving bank
collective investment funds), PTCE 90-1 (an exemption for certain transactions
involving insurance company pooled separate accounts), PTCE 95-60 (an exemption
for transactions involving certain insurance company general accounts) or PTCE
96-23 (an exception for certain transactions determined by an in-house asset
manager). In addition, a plan fiduciary considering the purchase of capital
securities should be aware that the assets of the Trust may be considered "plan
assets" for ERISA purposes. In this event, service providers with respect to
the assets of the Trust may become parties in interest or disqualified persons
with respect to investing plans, and any discretionary authority exercised with
respect to the debentures by such persons could be deemed to constitute a
prohibited transaction under ERISA or the Code. In order to avoid such
prohibited transactions, each investing plan, by purchasing the capital
securities, will be deemed to have represented and warranted that its purchase
and holding of the capital securities is not prohibited by either Section 406
of ERISA or Section 4975 of the Code or is exempt from any such prohibition and
to have directed the Trust to invest in the debentures and to have appointed
the Property Trustee.
A plan fiduciary should consider whether the purchase of capital securities
could result in a delegation of fiduciary authority to the Property Trustee,
and, if so, whether such a delegation of authority is permissible under the
plan's governing instrument or any investment management agreement with the
plan. In making such determination, a plan fiduciary should note that the
Property Trustee is a U.S. bank qualified to be an investment manager, within
the meaning of Section 3(38) of ERISA, to which such a delegation of authority
generally would be permissible under ERISA, provided the property trustee
acknowledges in writing that it is a fiduciary with respect to the plan.
Further, prior to an Event of Default with respect to the debentures, the
Property Trustee will have only limited custodial and ministerial authority
with respect to Trust assets.
The sale of investments to plans is in no respect a representation by the
Trust, First Commonwealth, the Property Trustee, the initial purchaser or any
other person associated with the sale of the capital securities that such
securities meet all relevant legal requirements with respect to investments by
plans generally or any particular plan, or that such securities are otherwise
appropriate for plans generally or any particular plan.
68
<PAGE>
CERTAIN RESALES
Each broker-dealer that receives exchange capital securities for its own
account under the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of the exchange capital securities. A
broker-dealer may use this prospectus, as it may be amended or supplemented, in
connection with the resales of exchange capital securities received in exchange
for original capital securities where the original capital securities were
acquired as a result of market-making activities or other trading activities.
We have agreed that for a period of one year after the date on the cover of
this prospectus, we will make this prospectus, as amended or supplemented,
available to any broker-dealer that requests it in the letter of transmittal
for use in connection with any such resale.
Exchange capital securities received by broker-dealers for their own account
under the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the exchange capital securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any resale may be made directly to purchasers or to or through brokers
or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any exchange
capital securities. Any broker-dealer that resells exchange capital securities
that were received by it for its own account under the exchange offer and any
broker or dealer that participates in a distribution of exchange capital
securities may be deemed to be an underwriter within the meaning of the
Securities Act and any profit on any resale of exchange capital securities and
any commissions or concessions received by any persons may be deemed to be
underwriting compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act.
We have agreed to pay expenses incurred with the exchange offer and the
performance of our other obligations under a registration rights agreement. We
have also agreed to indemnify the holders, including any broker-dealers, and
certain parties related to the holders against certain liabilities, including
liabilities under the Securities Act.
By accepting this exchange offer, each broker-dealer that receives the
exchange capital securities under the exchange offer agrees that, after
receiving notice from us of any event that makes any statement in this
prospectus untrue in any material respect or which requires us to make any
change in this prospectus to make the statements therein not misleading, the
broker will not use this prospectus until we have amended or supplemented it to
correct the misstatement or omission and have furnished copies of the amended
or supplemented prospectus to the broker-dealer.
69
<PAGE>
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the exchange
capital securities have been passed upon on behalf of First Commonwealth by
Richards, Layton & Finger, P.A., special Delaware counsel to First
Commonwealth. The validity of the exchange debentures and the exchange capital
securities guarantee and certain matters relating thereto have been passed upon
for First Commonwealth by Drinker Biddle & Reath LLP. Drinker Biddle & Reath
LLP has relied on Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to matters of
New York law.
EXPERTS
The financial statements of First Commonwealth and its consolidated
subsidiaries, except Southwest National Corporation and subsidiary, as of
December 31, 1998 and 1997 and for the years then ended incorporated in this
registration statement by reference from First Commonwealth's 1998 Annual
Report on Form 10-K, have been audited by Deloitte & Touche LLP as stated in
their report appearing therein. The financial statements of Southwest National
Corporation and subsidiary as of December 31, 1998 and 1997 and for each of the
three years in the period ended December 31, 1998 (consolidated with those of
First Commonwealth), have been audited by KPMG LLP, as stated in their report
appearing in First Commonwealth's 1998 Annual Report on Form 10-K. Such
financial statements of First Commonwealth and its consolidated subsidiaries
are incorporated by reference herein in reliance upon the respective reports of
such firms given upon their authority as experts in accounting and auditing.
Both of the foregoing firms are independent auditors and accountants.
The consolidated statements of income, shareholders' equity and cash flows
of First Commonwealth and its subsidiaries for the year ended December 31,
1996, before giving retroactive effect to the pooling of interest as described
in Note 2 to the consolidated financial statements of First Commonwealth
included in its 1998 Annual Report on Form 10-K, have been audited by Grant
Thornton LLP, independent certified public accountants, as stated in their
report appearing therein, and have been so incorporated by reference in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing. The combination of the consolidated statements of
income, shareholders' equity and cash flows for the year ended December 31,
1996 of First Commonwealth and Southwest National Corporation, after
restatement for the 1998 pooling of interest, incorporated by reference in this
registration statement from First Commonwealth's 1998 Annual Report on Form 10-
K, has been audited by Deloitte and Touche LLP, independent auditors, as stated
in their report appearing therein.
70
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
First Commonwealth and the Trust have not authorized any person to make a
statement that differs from what is in this prospectus. If any person makes a
statement that differs from what is in this prospectus, you should not rely on
it. This prospectus is not an offer to sell, nor is it seeking an offer to
buy, the capital securities in any state where such offer or sale is not
permitted. The information in this prospectus is complete and accurate as of
the date on the front of this prospectus but the information may change after
that date.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary Information--Q & A............................................... 1
Risk Factors............................................................. 7
Where You Can Find More Information...................................... 11
First Commonwealth....................................................... 12
Use of Proceeds.......................................................... 13
Ratio of Earnings to Fixed Charges....................................... 13
Accounting Treatment..................................................... 14
Capitalization........................................................... 14
Selected Consolidated Financial Data of First Commonwealth............... 15
The Trust................................................................ 17
The Exchange Offer....................................................... 18
Description of Capital Securities........................................ 31
Description of Junior Subordinated
Debentures.............................................................. 45
Description of the Capital Securities
Guarantee............................................................... 57
Description of Common Securities......................................... 61
Relationship Among the Capital Securities, the Junior Subordinated Deben-
tures and the Capital Securities Guarantee.............................. 62
Federal Income Tax Consequences.......................................... 64
Pennsylvania Corporate Loans Tax......................................... 68
ERISA Considerations..................................................... 68
Certain Resales.......................................................... 69
Legal Matters............................................................ 70
Experts.................................................................. 70
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
First Commonwealth Capital Trust I
$35,000,000
9.50% Capital Securities
fully and unconditionally
guaranteed to the extent
described herein by
First Commonwealth Financial Corporation
-----------
PROSPECTUS
-----------
, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law state
that, unless otherwise restricted in its by-laws, a business corporation shall
have power to indemnify representatives of the corporation, or other persons
serving at the request of the corporation, in certain circumstances. Article 23
of First Commonwealth's by-laws provide that First Commonwealth shall indemnify
any current or former director, officer or employee who was or is a party to,
or is threatened to be made a party to, or who is called as a witness in
connection with, 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 First Commonwealth) by reason of the fact
that such person is or was a director, officer or employee of First
Commonwealth, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her
in connection with such action, suit or proceeding if he or she acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of First Commonwealth, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendre or its equivalent,
shall not of itself create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Article 23 of First Commonwealth's by-laws also states that First
Commonwealth shall indemnify any director, officer or employee who was or is a
party to, or is threatened to be made a party to, or who is called as a witness
in connection with, any threatened, pending or completed action or suit by or
in the right of First Commonwealth to procure a judgment in its favor by reason
of the fact that such person is or was a director, officer or employee of First
Commonwealth, or is or was serving at the request of First Commonwealth,
against amounts paid in settlement and expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with defense or
settlement of, or serving as a witness in, such action or suit if he or she
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of First Commonwealth. However, First
Commonwealth may not indemnify any person for any claim, issue or matter as to
which such person shall have been adjudged to be liable for misconduct in the
performance of his duty to First Commonwealth. Except as may be otherwise
ordered by a court, there shall be a presumption that any director, officer or
employee is entitled to indemnification as described above unless either a
majority of the disinterested directors or, if there are less than three
disinterested directors, then the holders of one-third of the outstanding
shares of First Commonwealth determine that the person is not entitled to such
presumption by certifying such determination in writing to the Secretary of
First Commonwealth. First Commonwealth maintains a director and officer
liability insurance policy covering each of First Commonwealth's directors and
executive officers.
Under the Declaration of Trust of the Trust, First Commonwealth has agreed
to indemnify the administrative trustees and their affiliates, officers,
directors, shareholders and agents, against losses incurred because such
persons are administrative trustees, or affiliates or agents of administrative
trustees, in similar fashion to the indemnification by First Commonwealth of
its own directors, officers and employees as described in the preceding two
paragraphs. First Commonwealth has also agreed to indemnify the property
trustee, the Delaware trustee, and their officers, directors, shareholders, and
agents for such trustees, and to hold each harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based on
the income of such persons) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust under the Declaration of Trust. This indemnification includes the
costs and expenses (including reasonable legal fees and expenses) of defending
II-1
<PAGE>
such persons against, or investigating any claim or liability in connection
with, the exercise or performance of any of such persons' powers or duties
under the Declaration of Trust.
Item 21. Exhibits.
The following exhibits are filed as part of this Registration Statement.
Exhibit numbers correspond to the exhibits required by Item 601 of Regulation
S-K.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- ------------------------------------------------------------------
<C> <S>
*3.1 Articles of Incorporation of First Commonwealth Financial
Corporation, as amended.
3.2 Bylaws of First Commonwealth Financial Corporation (incorporated
by reference to Exhibit 3.2 to First Commonwealth Financial
Corporation's quarterly report on Form 10-Q filed October 15,
1993).
*4.1 Indenture of First Commonwealth Financial Corporation relating to
the Debentures.
*4.2 Form of Certificate of Exchange Debenture (included in Exhibit
4.1).
*4.3 Form of Certificate of Original Debenture (included in Exhibit
4.1).
*4.4 Certificate of Trust of First Commonwealth Capital Trust I.
*4.5 Amended and Restated Declaration of Trust of First Commonwealth
Capital Trust I.
*4.6 Form of Common Security (included in Exhibit 4.5).
*4.7 Form of Exchange Capital Security Certificate (included in Exhibit
4.5).
*4.8 Form of Certificate of Original Capital Security (included in
Exhibit 4.5).
*4.9 Original Guarantee of First Commonwealth Financial Corporation
relating to the Original Capital Securities.
*4.10 Form of Exchange Guarantee of First Commonwealth Financial
Corporation relating to the Exchange Capital Securities (included
in Exhibit 4.9).
*4.11 Registration Rights Agreement among First Commonwealth Financial
Corporation, First Commonwealth Capital Trust I and Keefe,
Bruyette & Woods, Inc.
*5.1 Opinion of Drinker Biddle & Reath LLP.
*5.2 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*5.3 Opinion of Richards, Layton & Finger P.A.
*8 Opinion of Drinker Biddle & Reath LLP as to certain federal income
tax matters.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- ------------------------------------------------------------------
<C> <S>
*12 Computation of Consolidated Ratio of Earnings to Fixed Charges.
21 Subsidiaries of First Commonwealth Financial Corporation
(incorporated herein by reference to Exhibit 21.1 to First
Commonwealth Financial Corporation's Form 10-K filed March 31,
1999).
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of KPMG LLP.
*23.3 Consent of Grant Thornton LLP.
*23.4 Consent of Drinker Biddle & Reath LLP (included in Exhibit 5.1).
*23.5 Consent of Akin, Gump, Strauss, Hauer & Feld, LLP (included in
Exhibit 5.2).
*23.6 Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.3).
*24 Power of Attorney of certain officers and Directors of First
Commonwealth Financial Corporation and the Administrative trustees
of First Commonwealth Capital Trust I (included on the signature
pages hereto).
*25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Indenture.
*25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Declaration of Trust of First
Commonwealth Capital Trust I.
*25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank
under the Exchange Guarantee for the benefit of the holders of
Exchange Capital Securities of First Commonwealth Capital Trust I.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
- --------
* Filed herewith.
Item 22. Undertakings
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
undersigned Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the undersigned Registrants of expenses incurred or paid by a director, officer
of controlling person of the Registrants 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 their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by the Registrants is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired or involved therein, that was not the subject of and included in
the registration statement when it became effective.
II-3
<PAGE>
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 of 1933;
(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 than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Commonwealth Financial Corporation has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indiana, Commonwealth of Pennsylvania on October 19,
1999.
First Commonwealth Financial Corporation
By: /s/ Joseph E. O'Dell
------------------------------------------
Joseph E. O'Dell, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby constitutes and appoints John J. Dolan and Gerard M. Thomchick as
his or her attorneys-in-fact and agents, with full power of substitution for
him or her in any and all capacities, to sign any or all amendments or post-
effective amendments to the Registration Statement, or any Registration
Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with exhibits thereto and other documents in connection therewith or in
connection with the registration of the Exchange Capital Securities, Exchange
Debentures and the Exchange Capital Securities Guarantee under the Securities
Exchange Act of 1934, as amended, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his or her substitutes
may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Joseph E. O'Dell President, Chief Executive October 19, 1999
______________________________________ Officer and Director
Joseph E. O'Dell
/s/ John J. Dolan Senior Vice President and October 19, 1999
______________________________________ Chief Financial Officer
John J. Dolan (Principal Accounting and
Financial Officer)
/s/ David S. Dahlman Director October 19, 1999
______________________________________
Davis S. Dahlman
/s/ John A. Robertshaw, Jr. Director October 19, 1999
______________________________________
John A. Robertshaw, Jr.
/s/ Dale P. Latimer Director October 19, 1999
______________________________________
Dale P. Latimer
/s/ Thomas L. Delaney Director October 19, 1999
______________________________________
Thomas L. Delaney
/s/ Sumner E. Brumbaugh Director October 19, 1999
______________________________________
Sumner E. Brumbaugh
/s/ David R. Tomb, Jr. Senior Vice President, October 19, 1999
______________________________________ Secretary, Treasurer and
David R. Tomb, Jr. Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Harvey H. Heilman, Jr. Director October 19, 1999
______________________________________
Harvey H. Heilman, Jr.
/s/ E. H. Brubaker Director October 19, 1999
______________________________________
E. H. Brubaker
/s/ Ronald C. Geiser Director October 19, 1999
______________________________________
Ronald Geiser
/s/ Johnston A. Glass Director October 19, 1999
______________________________________
Johnston A. Glass
/s/ Robert C. Williams Director October 19, 1999
______________________________________
Robert C. Williams
/s/ Robert F. Koslow Director October 19, 1999
______________________________________
Robert F. Koslow
/s/ James W. Newill Director October 19, 1999
______________________________________
James W. Newill
/s/ Laurie Stern Singer Director October 19, 1999
______________________________________
Laurie Stern Singer
/s/ Ray T. Charley Director October 19, 1999
______________________________________
Ray T. Charley
/s/ Edward T. Cote Director October 19, 1999
______________________________________
Edward T. Cote
</TABLE>
<TABLE>
<S> <C> <C>
/s/ A. B. Hallstrom Director October 19, 1999
______________________________________
A. B. Hallstrom
/s/ David F. Irvin Director October 19, 1999
______________________________________
David F. Irvin
/s/ David L. Johnson Director October 19, 1999
______________________________________
David L. Johnson
/s/ E. James Trimarchi Director October 19, 1999
______________________________________
E. James Trimarchi
/s/ Clayton C. Dovey, Jr. Director October 19, 1999
______________________________________
Clayton C. Dovey, Jr.
______________________________________ Director October 19, 1999
Thomas J. Hanford
/s/ Joseph Proske Director October 19, 1999
______________________________________
Joseph Proske
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Commonwealth Capital Trust I has duly caused this Registration Statement,
thereunto duly authorized, in the City of Indiana, Commonwealth of
Pennsylvania, on the 19th day of October, 1999.
First Commonwealth Capital Trust
By: /s/ John J. Dolan
-------------------------------------
John J. Dolan
Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons on behalf of
First Commonwealth Capital Trust I and in the capacities and on the dates
indicated. Each individual person whose signature appears below hereby
constitutes and appoints John J. Dolan and Gerard M. Thomchick as his or her
attorneys-in-fact and agents, with full power of substitution for him or her in
any and all capacities, to sign any or all amendments or post-effective
amendments to the Registration Statement, or any Registration Statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same, with exhibits
thereto and other documents in connection therewith or in connection with the
registration of the Exchange Capital Securities, Exchange Debentures and the
Exchange Capital Securities Guarantee under the Securities Exchange Act of
1934, as amended, with the Securities and Exchange Commission, granting unto
each of such attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his or her substitutes may do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gerard M. Thomchick Administrative Trustee October 19, 1999
______________________________________
Gerard M. Thomchick
/s/ John J. Dolan Administrative Trustee October 19, 1999
______________________________________
John J. Dolan
/s/ R. John Previte Administrative Trustee October 19, 1999
______________________________________
R. John Previte
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- ------------------------------------------------------------------
<C> <S>
*3.1 Articles of Incorporation of First Commonwealth Financial
Corporation, as amended.
3.2 Bylaws of First Commonwealth Financial Corporation (incorporated
by reference to Exhibit 3.2 to First Commonwealth Financial
Corporation's quarterly report on Form 10-Q filed October 15,
1993).
*4.1 Indenture of First Commonwealth Financial Corporation relating to
the Debentures.
*4.2 Form of Certificate of Exchange Debenture (included in Exhibit
4.1).
*4.3 Form of Certificate of Original Debenture (included in Exhibit
4.1).
*4.4 Certificate of Trust of First Commonwealth Capital Trust I.
*4.5 Amended and Restated Declaration of Trust of First Commonwealth
Capital Trust I.
*4.6 Form of Common Security (included in Exhibit 4.5).
*4.7 Form of Exchange Capital Security Certificate (included in Exhibit
4.5).
*4.8 Form of Certificate of Original Capital Security (included in
Exhibit 4.5).
*4.9 Original Guarantee of First Commonwealth Financial Corporation
relating to the Original Capital Securities.
*4.10 Form of Exchange Guarantee of First Commonwealth Financial
Corporation relating to the Exchange Capital Securities (included
in Exhibit 4.9).
*4.11 Registration Rights Agreement among First Commonwealth Financial
Corporation, First Commonwealth Capital Trust I and Keefe,
Bruyette & Woods, Inc.
*5.1 Opinion of Drinker Biddle & Reath LLP.
*5.2 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*5.3 Opinion of Richards, Layton & Finger, P.A.
*8 Opinion of Drinker Biddle & Reath LLP as to certain federal income
tax matters.
*12 Computation of Consolidated Ratio of Earnings to Fixed Charges.
21 Subsidiaries of First Commonwealth Financial Corporation
(incorporated herein by reference to Exhibit 21.1 to First
Commonwealth Financial Corporation's Form 10-K filed March 31,
1999).
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of KPMG LLP.
*23.3 Consent of Grant Thornton LLP.
*23.4 Consent of Drinker Biddle & Reath LLP (included in Exhibit 5.1).
*23.5 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.2).
*23.6 Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.3).
*24 Power of Attorney of certain officers and Directors of First
Commonwealth Financial Corporation and the Administrative trustees
of First Commonwealth Capital Trust I (included on the signature
pages hereto).
*25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Indenture.
*25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Declaration of Trust of First
Commonwealth Capital Trust I.
*25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank
under the Exchange Guarantee for the benefit of the holders of
Exchange Capital Securities of First Commonwealth Capital Trust I.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
- --------
* Filed herewith.
II-8
<PAGE>
EXHIBIT 3.1
Commonwealth of Pennsylvania
Department of State
CERTIFICATE OF INCORPORATION
Office of the Secretary of the Commonwealth
To All to Whom These Presents Shall Come, Greeting:
Whereas, Under the provisions of the Laws of the Commonwealth, the
Secretary of the Commonwealth is authorized and required to issue a "Certificate
of Incorporation" evidencing the incorporation of an entity.
Whereas, The stipulations and conditions of the Law have been fully
complied with by
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth, and under the authority of the Laws thereof, I do by these
presents, which I have caused to be sealed with the Great Seal of the
Commonwealth, declare and certify the creation, erection and incorporation of
the above in deed and in law by the name chosen hereinbefore specified.
Such corporation shall have and enjoy and shall be subject to all the
powers, duties, requirements, and restrictions, specified and enjoined in and by
the applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg, this
15th day of November in the year of our Lord one
thousand nine hundred and eighty-two and of the
Commonwealth the two hundred and seventh.
/s/ William R. Davis
-----------------------------------
Secretary of the Commonwealth
<PAGE>
<TABLE>
----------------------------
<S> <C>
DSCB:BCL-806 (Rev. 8-72) Applicant's Account No. __________ Filed this 20/th/ day of
January, A.D. 1983
Filing Fee: $40 8312 212 Commonwealth of Pennsylvania
AB-2 ____________________________ Department of State
701291
Articles of COMMONWEALTH OF PENNSYLVANIA
Amendment - DEPARTMENT OF STATE /s/ William R. Davis
Domestic Business Corporation CORPORATION BUREAU Secretary of the Commonwealth
------------------------------
</TABLE>
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364) (15 P.S. (S)1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
FIRST COMMONWEALTH FINANCIAL CORPORATION
- ------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
601 Philadelphia Street
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Indiana Pennsylvania 15701
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is: Title 15 P.S. Section
1204, as amended, Business Corporation Law of the Commonwealth of Pennsylvania
(Act of May 5, 1933, P.L. 364)
- --------------------------------------------------------------------------------
4. The date of its incorporation is: November 15, 1982
-----------------
5. (Check, and if appropriate, complete one of the following):
[_] The meeting of the shareholders of the corporation at which the
amendment was adopted was held at the time and place and pursuant to the kind
and period of notice herein stated.
Time: The _______________ day of ________________________, 19_____.
Place:_________________________________________________________________
Kind and period of notice________________________________________________
_____________________________________________________________________________
[X] The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
one (1)
- --------------------------------------------------------------------------------
<PAGE>
(b) The number of shares entitled to vote was:
one (1)
- --------------------------------------------------------------------------------
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:
one (1)
- --------------------------------------------------------------------------------
(b) The number of shares voted against the amendment was:
none
- --------------------------------------------------------------------------------
8. The amendment adopted by the shareholders, set forth in full, is as
follows:
RESOLVED, that Article Five (5) of the Articles of Incorporation
is hereby amended to read in full as follows:
"5. The aggregate number of shares which the corporation shall have
authority to issue is: Three million (3,000,000) shares of
common stock of the par value of Five Dollars ($5.00) per share
(the "Common Stock").
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer and its
corporate seal, duly attested by another such officer, to be hereunto affixed
this 22/nd/ day of December, 1982.
FIRST COMMONWEALTH FINANCIAL CORPORATION
----------------------------------------
(NAME OF CORPORATION)
Attest: By: E. James Trimarchi,
--------------------------------------
(SIGNATURE)
David R. Tomb, Jr.,
- -------------------------
(SIGNATURE) President
------------------------------------------
(TITLE: PRESIDENT, VICE PRESIDENT, ETC.)
Secretary
- --------------------------------------------
(TITLE: SECRETARY, ASSISTANT SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM:
A. Any necessary copies of Form DSCB:17.2 (Consent to Appropriation of
Name) or Form DSCB: 17.3 (Consent to Use of Similar Name) shall
accompany Articles of Amendment effecting a change of name.
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
A-2
<PAGE>
D. If the shares of any class were entitled to vote as a class, the
number of shares of each class so entitled and the number of shares of
all other classes entitled to vote should be set forth in Paragraph
6(b).
E. If the shares of any class were entitled to vote as a class, the
number of shares of such class and the number of shares of all other
classes voted for and against such amendment respectively should be
set forth in Paragraphs 7(a) and 7(b).
A-3
<PAGE>
Commonwealth of Pennsylvania
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, In and by Article VIII of the Business Corporation Law,
approved the fifth day of May, Anno Domini one thousand nine hundred and thirty-
three, P.L. 364, as amended, the Department of State is authorized and required
to issue a
CERTIFICATE OF AMENDMENT
evidencing the amendment of the Articles of Incorporation of a business
corporation organized under or subject to the provisions of that Law, and
Whereas, The stipulations and conditions of that Law pertaining to the
amendment of Articles of Incorporation have been fully complied with by
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law, I do by
these presents, which I have caused to be sealed with the Great Seal of the
Commonwealth, extend the rights and powers of the corporation named above, in
accordance with the terms and provisions of the Articles of Amendment presented
by it to the Department of State, with full power and authority to use and enjoy
such rights and powers, subject to all the provisions and restrictions of the
Business Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg, this
20th day of January in the year of our Lord one
thousand nine hundred and eighty-three and of the
Commonwealth the two hundred and seventh.
/s/ William R. Davis
-----------------------------------
Secretary of the Commonwealth
<PAGE>
<TABLE>
------------------------------
<S> <C>
Applicant's Account No. __________ Filed this 29/th/ day of
May, A.D. 1984
DSCB:BCL-806 (Rev. 8-72)
Commonwealth of Pennsylvania
Filing Fee: $40 8436 292 Department of State
AB-2
701291
Articles of COMMONWEALTH OF PENNSYLVANIA /s/ William R. Davis
Amendment - DEPARTMENT OF STATE Secretary of the Commonwealth
Domestic Business Corporation CORPORATION BUREAU
------------------------------
</TABLE>
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364) (15 P.S. (S)1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
First Commonwealth Financial Corporation
- -------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
601 Philadelphia Street
- ------------------------------------------------------------------------------
(NUMBER) (STREET)
Indiana Pennsylvania 15701
- -------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is:
Business Corporation Law, Act of May 5, 1933, P.L. 364
- --------------------------------------------------------------------------------
4. The date of its incorporation is: November 15, 1982
-----------------
5. (Check, and if appropriate, complete one of the following):
[X] The meeting of the shareholders of the corporation at which the
amendment was adopted was held at the time and place and pursuant to the kind
and period of notice herein stated.
Time: The 28/th/ day of April, 1984
------ ----- --
Place: Folger Hall, Indiana, Pennsylvania
----------------------------------
Kind and period of notice Written notice mailed April 6, 1984
---------------------------------------------
_______________________________________________________________________________
[_] The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
1,387,731
- -------------------------------------------------------------------------------
<PAGE>
(b) The number of shares entitled to vote was:
- --------------------------------------------------------------------------------
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:
1,006,919 For 9,519 Against
- --------------------------------------------------------------------------------
(b) The number of shares voted against the amendment was:
- --------------------------------------------------------------------------------
8. The amendment adopted by the shareholders, set forth in full, is as
follows:
See attached Appendix I.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer and its
corporate seal, duly attested by another such officer, to be hereunto affixed
this 24/th/day of May, 1984.
FIRST COMMONWEALTH FINANCIAL CORPORATION
-------------------------------------------
(NAME OF CORPORATION)
Attest: By: E. James Trimarchi,
---------------------------------------
(SIGNATURE)
David R. Tomb, Jr.,
- ----------------------------------
(SIGNATURE) President
----------------------------------------
(TITLE, PRESIDENT, VICE PRESIDENT, ETC.)
Secretary
- --------------------------------------------
(TITLE, SECRETARY, ASSISTANT SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM:
A. Any necessary copies of Form DSCB: 17.2 (Consent to Appropriation of
Name) or Form DSCB: 17.3 (Consent to Use of Similar Name) shall
accompany Articles of Amendment effecting a change of name.
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
D. If the shares of any class were entitled to vote as a class, the
number of shares of each class so entitled and the number of shares
of all other classes entitled to vote should be set forth in
Paragraph 6(b).
E. If the shares of any class were entitled to vote as a class, the
number of shares of such class and the number of shares of all other
classes entitled to vote for and against such amendment respectively
should be set forth in Paragraphs 7(a) and 7(b).
A-2
<PAGE>
APPENDIX I
RESOLVED: That Article 5 of the Articles of Incorporation of this Corporation be
- --------
amended to provide as follows:
"5. The aggregate number of shares which the
Corporation shall have authority to issue is:
Three Million (3,000,000) shares of Common Stock
of the par value of Five Dollars ($5.00) per share
(the "Common Stock") and Three Million (3,000,000)
shares of Preferred Stock of the par value of One
Dollar ($1.00) per share (the "Preferred Stock").
The description of the Preferred Stock is as follows:
The Board of Directors is hereby expressly authorized, at any time or from
time to time, to divide any or all of the shares of the Preferred Stock into one
or more series, and in the resolution or resolutions establishing a particular
series, before issuance of any of the shares thereof, to fix and determine the
number of shares and the designation of such series, so as to distinguish it
from the shares of all other series and classes, and to fix and determine the
preferences, voting rights, qualifications, privileges, limitations, options,
conversion rights, restrictions and other special or relative rights of the
Preferred Stock or of such series, to the fullest extent now or hereafter
permitted by the laws of the Commonwealth of Pennsylvania, including, but not
limited to, the variations between different series in the following respects:
(a) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding) from
time to time by the Board of Directors;
(b) the annual dividend rate for such series, and the date or dates
from which dividends shall commence to accrue;
(c) the price or prices at which, and the terms and conditions on
which, the shares of such series may be made redeemable;
(d) the purchase or sinking fund provisions, if any, for the
purchase or redemption of shares of such series;
(e) the preferential amount or amounts payable upon shares of such
series in the event of the liquidation, dissolution or winding up of the
Corporation;
(f) the voting rights, if any, of shares of such series;
(g) the terms and conditions, if any, upon which shares of such
series may be converted and the class or classes or series of shares of the
Corporation into which such shares may be converted;
(h) the relative seniority, parity or junior rank of such series as
to dividends or assets with respect to any other classes or series of stock then
or thereafter to be issued; and
(i) such other terms, qualifications, privileges, limitations,
options, restrictions, and special or relative rights and preferences, if any,
of shares of such series as the Board of Directors may, at the time of such
resolutions, lawfully fix and determine under the laws of the Commonwealth of
Pennsylvania.
A-3
<PAGE>
Unless otherwise provided in a resolution establishing any particular series,
the aggregate number of authorized shares of Preferred Stock may be increased by
an amendment of the Articles approved solely by a majority vote of the
outstanding shares of Common Stock (or solely with a lesser vote of the Common
Stock, or solely by action of the Board of Directors, if permitted by law at the
time).
All shares of any one series shall be alike in every particular, except
with respect to the accrual of dividends prior to date of issue.
The Corporation may issue shares, option rights, securities having
conversion or option rights and any other securities of any class without first
offering them to shareholders of any class or classes.
A-4
<PAGE>
Commonwealth of Pennsylvania
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, In and by Article VIII of the Business Corporation Law,
approved the fifth day of May, Anno Domini one thousand nine hundred and thirty-
three, P.L. 364, as amended, the Department of State is authorized and required
to issue a
CERTIFICATE OF AMENDMENT
evidencing the amendment of the Articles of Incorporation of a business
corporation organized under or subject to the provisions of that Law, and
Whereas, The stipulations and conditions of that Law pertaining to the
amendment of Articles of Incorporation have been fully complied with by
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law, I do by
these presents, which I have caused to be sealed with the Great Seal of the
Commonwealth, extend the rights and powers of the corporation named above, in
accordance with the terms and provisions of the Articles of Amendment presented
by it to the Department of State, with full power and authority to use and enjoy
such rights and powers, subject to all the provisions and restrictions of the
Business Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg, this
29/th/ day of May in the year of our Lord one
thousand nine hundred and eighty-four and of the
Commonwealth the two hundred and eighth.
/s/ William R. Davis
---------------------------------
Secretary of the Commonwealth
<PAGE>
<TABLE>
<S> <C> <C>
--------------------------------
Applicant's Account No. __________ Filed this 22/nd/ day of
April, A.D. 1986
DSCB:BCL-806 (Rev. 8-72)
Commonwealth of Pennsylvania
Filing Fee: $40 86271436 Department of State
AB-2
----------------------------
Articles of COMMONWEALTH OF PENNSYLVANIA /s/ Robert A. Gleason, Jr.
Amendment - DEPARTMENT OF STATE Secretary of the Commonwealth
Domestic Business Corporation CORPORATION BUREAU
--------------------------------
</TABLE>
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364) (15 P.S. (S)1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
First Commonwealth Financial Corporation
- --------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
601 Philadelphia Street
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Indiana Pennsylvania 15701
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is:
Business Corporation Law, Act of May 5, 1933, P.L. 364
- --------------------------------------------------------------------------------
4. The date of its incorporation is: November 15, 1982
----------------------------------------
5. (Check, and if appropriate, complete one of the following):
[X] The meeting of the shareholders of the corporation at which the
amendment was adopted was held at the time and place and pursuant to the kind
and period of notice herein stated.
Time: The 19/th/ day of April, 1986.
------ ----- --
Place: Folger Hall, Indiana, Pennsylvania
--------------------------------------------------------------------
Kind and period of notice Written notice mailed March 21, 1986
------------------------------------------------
- --------------------------------------------------------------------------------
[_] The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
2,014,499
- --------------------------------------------------------------------------------
<PAGE>
(b) The number of shares entitled to vote was:
2,014,499
- --------------------------------------------------------------------------------
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:
1,481,718
- --------------------------------------------------------------------------------
(b) The number of shares voted against the amendment was:
32,382
- --------------------------------------------------------------------------------
8. The amendment adopted by the shareholders, set forth in full, is as
follows:
See attached Appendix I.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer and its corporate seal,
duly attested by another such officer, to be hereunto affixed this 21/st/ day of
April, 1986.
FIRST COMMONWEALTH FINANCIAL CORPORATION
--------------------------------------------
(NAME OF CORPORATION)
Attest: By: E. James Trimarchi,
----------------------------------------
(SIGNATURE)
David R. Tomb, Jr.,
- -----------------------------------
(SIGNATURE) President
----------------------------------------
(TITLE: PRESIDENT, VICE PRESIDENT, ETC.)
Secretary
- -----------------------------------
(TITLE: SECRETARY, ASSISTANT
SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM:
A. Any necessary copies of Form DSCB:17.2 (Consent to Appropriation of
Name) or Form DSCB: 17.3 (Consent to Use of Similar Name) shall
accompany Articles of Amendment effecting a change of name.
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
D. If the shares of any class were entitled to vote as a class, the
number of shares of each class so entitled and the number of shares of
all other classes entitled to vote should be set forth in Paragraph
6(b).
E. If the shares of any class were entitled to vote as a class, the
number of shares of such class and the number of shares of all other
classes voted for and against such amendment respectively should be
set forth in Paragraphs 7(a) and 7(b).
A-2
<PAGE>
F. BCL (S)807 (15 P.S. (S)1807) requires that the corporation shall
advertise its intention to file or the filing of Articles of
Amendment. Proofs of publication of such advertising should not be
delivered to the Department, but should be filed with the minutes of
the corporation.
A-3
<PAGE>
APPENDIX I
RESOLVED: That Article 5 of the Articles of Incorporation of this Corporation be
- --------
amended to provide as follows:
"5. The aggregate number of shares which the
Corporation shall have authority to issue is: Ten
Million (10,000,000) shares of Common Stock of the par
value of Five Dollars ($5.00) per share (the "Common
Stock") and Three Million (3,000,000) shares of
Preferred Stock of the par value of One Dollar ($1.00)
per share (the "Preferred Stock").
The description of the Preferred Stock is as follows:
The Board of Directors is hereby expressly authorized, at any time or from
time to time, to divide any or all of the shares of the Preferred Stock into one
or more series, and in the resolution or resolutions establishing a particular
series, before issuance of any of the shares thereof, to fix and determine the
number of shares and the designation of such series, so as to distinguish it
from the shares of all other series and classes, and to fix and determine the
preferences, voting rights, qualifications, privileges, limitations, options,
conversion rights, restrictions and other special or relative rights of the
Preferred Stock or of such series, to the fullest extent now or hereafter
permitted by the laws of the Commonwealth of Pennsylvania, including, but not
limited to, the variations between different series in the following respects:
(a) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding) from
time to time by the Board of Directors;
(b) the annual dividend rate for such series, and the date or dates
from which dividends shall commence to accrue;
(c) the price or prices at which, and the terms and conditions on
which, the shares of such series may be made redeemable;
(d) the purchase or sinking fund provisions, if any, for the purchase
or redemption of shares of such series;
(e) the preferential amount or amounts payable upon shares of such
series in the event of the liquidation, dissolution or winding up of the
Corporation;
(f) the voting rights, if any, of shares of such series;
(g) the terms and conditions, if any, upon which shares of such
series may be converted and the class or classes or series of shares of the
Corporation into which such shares may be converted;
(h) the relative seniority, parity or junior rank of such series as
to dividends or assets with respect to any other classes or series of stock then
or thereafter to be issued; and
(i) such other terms, qualifications, privileges, limitations,
options, restrictions, and special or relative rights and preferences, if any,
of shares of such series as the Board of Directors may, at the time of such
resolutions, lawfully fix and determine under the laws of the Commonwealth of
Pennsylvania.
A-4
<PAGE>
Unless otherwise provided in a resolution establishing any particular series,
the aggregate number of authorized shares of Preferred Stock may be increased by
an amendment of the Articles approved solely by a majority vote of the
outstanding shares of Common Stock (or solely with a lesser vote of the Common
Stock, or solely by action of the Board of Directors, if permitted by law at the
time).
All shares of any one series shall be alike in every particular, except
with respect to the accrual of dividends prior to date of issue.
The Corporation may issue shares, option rights, securities having
conversion or option rights and any other securities of any class without first
offering them to shareholders of any class or classes.
A-5
<PAGE>
Commonwealth of Pennsylvania
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, In and by Article VIII of the Business Corporation Law,
approved the fifth day of May, Anno Domini one thousand nine hundred and thirty-
three, P.L. 364, as amended, the Department of State is authorized and required
to issue a
CERTIFICATE OF AMENDMENT
evidencing the amendment of the Articles of Incorporation of a business
corporation organized under or subject to the provisions of that Law, and
Whereas, The stipulations and conditions of that Law pertaining to the
amendment of Articles of Incorporation have been fully complied with by
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law, I do by
these presents, which I have caused to be sealed with the Great Seal of the
Commonwealth, extend the rights and powers of the corporation named above, in
accordance with the terms and provisions of the Articles of Amendment presented
by it to the Department of State, with full power and authority to use and enjoy
such rights and powers, subject to all the provisions and restrictions of the
Business Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg, this
22/nd/ day of April in the year of our Lord
one thousand nine hundred and eighty-six and
of the Commonwealth the two hundred tenth.
/s/ Robert A. Gleason, Jr.
--------------------------------------------
Secretary of the Commonwealth
<PAGE>
<TABLE>
<S> <C> <C>
--------------------------------
Applicant's Account No. __________ Filed this 29/th/ day of
December, A.D. 1986
DSCB:BCL-903 (Rev. 8-72) Eff: December 31, 1986 11:59 p.m.
Filing Fee: $80 plus $20 87032114 Commonwealth of Pennsylvania
for each party corporation Department of State
----------------------------
in excess of two
AMB-9 COMMONWEALTH OF PENNSYLVANIA
Articles of Merger - DEPARTMENT OF STATE /s/ Robert A. Gleason, Jr.
Business Corporation CORPORATION BUREAU Secretary of the Commonwealth
--------------------------------
</TABLE>
In compliance with the requirements of section 903 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364), as amended (15 P.S. (S)1903),
the undersigned corporations, desiring to effect a merger, hereby certify that:
1. The name of the corporation surviving the merger is First
Commonwealth Financial Corporation.
2. The surviving corporation is a domestic corporation and the
location of its registered office in this Commonwealth is 601 Philadelphia
Street, Indiana, Indiana County, Pennsylvania 15701.
3. The name of the other domestic business corporation a party to
the plan of merger is CNB CORP, Inc., and the location of its registered office
in this Commonwealth is 1204 Graham Avenue, Windber, Somerset County,
Pennsylvania 15963.
4. The plan of merger shall be effective at 11:59 P.M. on December
31, 1986.
5. The manner in which the plan of merger was adopted by the
shareholders of each domestic corporation is as follows:
The shareholders of CNB CORP, Inc. approved by the affirmative vote of
the shareholders entitled to vote thereon at a meeting called after at
least ten days written notice to all shareholders of record, whether or not
entitled to vote thereon, setting forth such purpose.
The shareholders of First Commonwealth Financial Corporation approved
by the affirmative vote of the shareholders entitled to vote thereon at a
meeting called after at least ten days written notice to all shareholders
of record, whether or not entitled to vote thereon, setting forth such
purpose.
6. The plan of merger is set forth in Exhibit A attached hereto and
made a part hereof.
<PAGE>
IN WITNESS WHEREOF, CNB CORP, Inc. and First Commonwealth Financial
Corporation have caused these Articles of Merger to be signed by their
respective Presidents and Secretaries and their respective corporate seals to be
hereunto affixed on December 29, 1986.
CNB CORP, INC. FIRST COMMONWEALTH FINANCIAL
CORPORATION
By By /s/ E. James Trimarchi
-------------------------------- ---------------------------------
President President
By By /s/ David R. Tomb, Jr.
-------------------------------- ---------------------------------
Secretary Secretary
[Corporate Seal] [Corporate Seal]
A-2
<PAGE>
Exhibit A
PLAN OF MERGER
--------------
CNB CORP, INC., a Pennsylvania business corporation ("CNB"), and FIRST
COMMONWEALTH FINANCIAL CORPORATION, a Pennsylvania business corporation
("FCFC"), are parties to an Agreement and Plan of Reorganization made as of
September 24, 1986 (the "Reorganization Agreement"), providing for the merger of
CNB into FCFC (the "Merger") in accordance with this Plan of Merger and the
Pennsylvania Business Corporation Law (the "BCL"). CNB and FCFC are hereinafter
sometimes referred to as the "Constituent Corporations."
TERMS AND CONDITIONS
1. Merger. The Constituent Corporation shall effect the Merger on the
terms and conditions hereinafter set forth in this Plan of Merger.
(a) Effect. On the Effective Date (as hereinafter defined in Section
1(b)), CNB shall be merged into FCFC, and FCFC shall be, and is sometimes
hereinafter referred to as, the "Surviving Corporation," and the separate
existence of CNB, except insofar as it may be continued by statute or
Section 6 hereof, shall cease, all with the effect provided in Section 907
of the BCL.
(b) Effective Date. On the Closing Date (as defined in the
Reorganization Agreement), subject to the terms and conditions herein provided,
Articles of Merger shall be executed by the Constituent Corporations at the
offices of CNB, 1204 Graham Avenue, Windber, Pennsylvania. On the Closing Date
or as soon thereafter as practicable, Articles of Merger shall be filed with the
Pennsylvania Department of State. The Merger shall become effective at the close
of business on the date of the filing with the Pennsylvania Department of State
of Articles of Merger as contemplated by the Reorganization Agreement or the
effective date specified in such Articles, whichever is later (which day and
time are herein called the "Effective Date").
2. Conversion of CNB Shares. Each share of Common Stock, par value $5 per
share, of CNB (the "CNB Stock") issued and outstanding immediately before the
Merger becomes effective shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into one share of Common Stock,
par value $5 per share, of FCFC (the "FCFC Stock").
3. Surrender and Exchange of CNB Stock. Upon the Merger becoming
effective, holders of certificates which represent shares of CNB Stock
outstanding immediately before the Merger becomes effective (hereinafter called
"Old Certificates") shall cease to be, and shall have no rights as, shareholders
of CNB. Old Certificates shall be exchangeable by the holders thereof (upon
surrender of such Old Certificates in the manner provided in the transmittal
materials described below) for a certificate or certificates for the number of
shares of FCFC Stock equal to the number of shares of CNB Stock represented by
the Old Certificates so surrendered.
As promptly as practicable after the Effective Date, FCFC shall send or
cause to be sent to each holder of record of CNB Stock as of the close of
business on the Effective Date transmittal materials for use in surrendering Old
Certificates in exchange for certificates representing FCFC Stock. The letter of
transmittal will contain instructions with respect to the surrender of Old
Certificates.
If any dividend on FCFC Stock is declared by FCFC after the Effective Date,
the declaration shall include dividends on all shares of FCFC Stock into which
shares of CNB Stock has been converted under this Plan of Merger, but no former
holder of record of CNB Stock will be entitled to receive a distribution of any
such dividend until surrender of the shareholder's Old Certificates shall have
been effected in accordance with the instructions furnished by FCFC. Upon
surrender for exchange of a shareholder's Old Certificates, such shareholder
shall be
A-3
<PAGE>
entitled to receive from FCFC an amount equal to all such dividends declared
(without interest thereon and less the amount of taxes, if any, which may have
been imposed or paid thereon), and for which the payment date has occurred, on
the whole shares of FCFC Stock into which the shares of CNB Stock represented by
such Old Certificates have been converted.
After the Merger becomes effective, there shall be no transfers on the
stock transfer books of CNB or FCFC of shares of CNB Stock. If, after the
Effective Date, Old Certificates are presented for transfer, they shall be
canceled and certificates representing whole shares of FCFC Stock shall be
issued in exchange therefor as provided herein.
4. Articles of Incorporation and By-Laws. The Articles of Incorporation
and By-Laws of FCFC as in effect on the Effective Date shall continue in effect
without further change therein by reason of the Merger.
5. Termination and Amendment. Notwithstanding approval by the
shareholders of CNB or FCFC or both of them, this Plan of Merger shall be
terminated and the Merger shall be abandoned in the event of termination of the
Reorganization Agreement as provided therein. Subject to applicable law, this
Plan of Merger may be amended in any respect by an instrument in writing signed
by an authorized officer of each of FCFC and CNB before or after the
shareholders' meetings referred to the Reorganization Agreement at any time
prior to the time the Merger becomes effective, except that no such amendment
after such shareholders' meetings shall affect the rates of exchange provided in
this Plan of Merger.
6. Further Assurances. If at any time the Surviving Corporation shall
consider or be advised that any further assignments, conveyances or assurances
in law are necessary or desirable to vest, perfect or confirm of record in the
Surviving Corporation the title to any property or rights of the Constituent
Corporations, or otherwise to carry out the provisions hereof, the proper
officers and directors of the Constituent Corporations immediately before the
Effective Date shall, on behalf of the Constituent Corporations, execute and
deliver any and all proper deeds, assignments and assurances in law, and do all
things necessary or proper to vest, perfect or confirm title to such property or
rights in the Surviving Corporation and otherwise to carry out the provisions
hereof.
A-4
<PAGE>
Commonwealth of Pennsylvania
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, Under the terms of the Business Corporation Law, approved May
5, 1933, P.L. 364, as amended, the Department of State is authorized and
required to issue a
CERTIFICATE OF MERGER
evidencing the merger of one or more corporations into one of such corporations
under the provisions of that law; and
Whereas, The stipulations and conditions of that law relating to the
merger of such corporations have been fully complied with by CNB CORP, INC. and
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law, approved
May 5, 1933, P.L. 364, as amended, I DO BY THESE PRESENTS, which I have caused
to be sealed with the Great Seal of the Commonwealth, merge the above named CNB
CORP, INC. into and with FIRST COMMONWEALTH FINANCIAL CORPORATION, the surviving
corporation,
which shall continue to be invested with and have and enjoy all the powers,
privileges and franchises incident to a domestic business corporation, and be
subject to all the duties, requirements and restrictions specified and enjoined
in and by the Business Corporation Law and all other applicable laws of this
Commonwealth.
Given Effective: December 31, 1986 - 11:59 P.M. under
my Hand and the Great Seal of the Commonwealth,
at the City of Harrisburg, this 29th day of
December in the year of our Lord one thousand
nine hundred and eighty-six and of the
Commonwealth the two hundred eleventh.
/s/ Robert A. Gleason, Jr.
----------------------------------------
Secretary of the Commonwealth
<PAGE>
<TABLE>
<S> <C>
-------------------------------
Applicant's Account No. __________ Filed this 8/th/ day of
May, A.D. 1987
DSCB:BCL-806 (Rev. 8-72)
Commonwealth of Pennsylvania
Filing Fee: $40 87331979 Department of State
AB-2
____________________________
Articles of COMMONWEALTH OF PENNSYLVANIA /s/ James J. Haggerty
Amendment - DEPARTMENT OF STATE Secretary of the Commonwealth
Domestic Business Corporation CORPORATION BUREAU
-------------------------------
</TABLE>
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364) (15 P.S. (S)1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
First Commonwealth Financial Corporation
- --------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
601 Philadelphia Street
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Indiana Pennsylvania 15701
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is:
Business Corporation Law, Act of May 5, 1933, P.L. 364
---------------------------------------------------------------------------
4. The date of its incorporation is: November 15, 1982
-----------------------------------------
5. (Check, and if appropriate, complete one of the following):
[X] The meeting of the shareholders of the corporation at which the
amendment was adopted was held at the time and place and pursuant to the kind
and period of notice herein stated.
Time: The 25/th/ day of April, 1987.
------ ----- --
Place: Folger Hall, Indiana, Pennsylvania
---------------------------------------------------------------------
Kind and period of notice Written notice mailed April 2, 1987
--------------------------------------------------
- --------------------------------------------------------------------------------
[_] The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
2,370,749
- --------------------------------------------------------------------------------
<PAGE>
(b) The number of shares entitled to vote was:
2,370,749
- --------------------------------------------------------------------------------
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:
1,977,412
- --------------------------------------------------------------------------------
(b) The number of shares voted against the amendment was:
38,195
- --------------------------------------------------------------------------------
8. The amendment adopted by the shareholders, set forth in full, is as
follows:
See attached Exhibit B.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer and its corporate seal,
duly attested by another such officer, to be hereunto affixed this 5th day of
May, 1987.
FIRST COMMONWEALTH FINANCIAL CORPORATION
----------------------------------------
(NAME OF CORPORATION)
Attest: By: /s/ E. James Trimarchi
-------------------------------------
(SIGNATURE)
/s/ David R. Tomb, Jr.
- ----------------------------
(SIGNATURE) President
-------------------------------------
(TITLE: PRESIDENT, VICE PRESIDENT, ETC.)
Secretary
- --------------------------------------------
(TITLE: SECRETARY, ASSISTANT SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM:
A. Any necessary copies of Form DSCB: 17.2 (Consent to Appropriation of
Name) or Form DSCB: 17.3 (Consent to Use of Similar Name) shall
accompany Articles of Amendment effecting a change of name.
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
D. If the shares of any class were entitled to vote as a class, the
number of shares of each class so entitled and the number of shares of
all other classes entitled to vote should be set forth in Paragraph
6(b).
E. If the shares of any class were entitled to vote as a class, the
number of shares of such class and the number of shares of all other
classes voted for and against such amendment respectively should be
set forth in Paragraphs 7(a) and 7(b).
A-2
<PAGE>
F. BCL (S)807 (15 P.S. (S)1807) requires that the corporation shall
advertise its intention to file or the filing of Articles of Amendment. Proofs
of publication of such advertising should not be delivered to the Department,
but should be filed with the minutes of the corporation.
A-3
<PAGE>
EXHIBIT B
Amended Article 7 of the Articles of Incorporation of
First Commonwealth Financial Corporation
Note: The proposed amendment would make the changes as underlined in Article 7.
7. Except as otherwise provided in Section 902.1 (Merger Without
-------------------------------------------------------------
Shareholder Approval) of the Pennsylvania Business Corporation Law (or the
- ------------------------------------------------------------------
corresponding provisions of any future Pennsylvania corporation law), no merger,
consolidation, liquidation or dissolution of the corporation nor any action that
would result in the sale or other disposition of all or substantially all of the
assets of the corporation shall be valid unless first approved by the
affirmative vote of the holders of at least seventy-five percent (75%) of the
-------------------------
outstanding shares of Common Stock. This Article 7 may not be amended unless
first approved by the affirmative vote of the holders of at least seventy-five
------------
percent (75%) of the outstanding shares of Common Stock.
- ------------
A-4
<PAGE>
Commonwealth of Pennsylvania
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, In and by Article VIII of the Business Corporation Law,
approved the fifth day of May, Anno Domini one thousand nine hundred and thirty-
three, P.L. 364, as amended, the Department of State is authorized and required
to issue a
CERTIFICATE OF AMENDMENT
evidencing the amendment of the Articles of Incorporation of a business
corporation organized under or subject to the provisions of that Law, and
Whereas, The stipulations and conditions of that Law pertaining to the
amendment of Articles of Incorporation have been fully complied with by
FIRST COMMONWEALTH FINANCIAL CORPORATION
Therefore, Know Ye, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law, I do by
these presents, which I have caused to be sealed with the Great Seal of the
Commonwealth, extend the rights and powers of the corporation named above, in
accordance with the terms and provisions of the Articles of Amendment presented
by it to the Department of State, with full power and authority to use and enjoy
such rights and powers, subject to all the provisions and restrictions of the
Business Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg,
this 8th day of May in the year of our Lord
one thousand nine hundred and eighty-seven
and of the Commonwealth the two hundred
eleventh.
/s/ James J. Haggerty
-------------------------------------------
Secretary of the Commonwealth
<PAGE>
Microfilm Number 90211648 Filed with the Department of State on May 3, 1990
--------
Entry Number 701291-009 /s/ Christopher A. Lewis
---------- -------------------------------------------------
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 89)
In compliance with the requirements of 15 Pa. C.S. (S) 1915 (relating to
articles of amendment), the undersigned business corporation, desiring to amend
its Articles, hereby states that:
1. The name of the corporation is: First Commonwealth Financial Corporation
------------------------------------------
- --------------------------------------------------------------------------------
2. The address of this corporation's current (a) registered office in this
Commonwealth or (b) commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct the following
address to conform to the records of the Department):
(a) 601 Philadelphia Street Indiana PA 15701 Indiana
---------------------------------------------------------------------------
Number and Street City State Zip County
(b) ___________________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
3. The statute by or under which it was incorporated is: Business Corporation
--------------------
Law approved May 5, 1933 P.L. 364
---------------------------------------------------------------------------
4. The original date of its incorporation is: November 15, 1982
--------------------------------
5. (Check, and if appropriate complete, one of the following):
X The amendment shall be effective upon filing these Articles of
---
Amendment in the Department of State.
___ The amendment shall be effective on:__________________________________
6. (Check one of the following):
X The amendment was adopted by the shareholders pursuant to 15 Pa.C.S.
---
(S) 1914(a) and (b).
___ The amendment was adopted by the board of directors pursuant to 15
Pa.C.S. (S) 1914(c).
7. (Check, and if appropriate complete, one of the following):
X The amendment adopted by the corporation, set forth in full, is as
---
follows:
<PAGE>
RESOLVED: That the first sentence of Article 5 of the Articles of
Incorporation of this Corporation be amended to provide as follows:
"5. The aggregate number of shares which the Corporation shall have
authority to issue is: Twenty-five million (25,000,000) shares of Common
Stock of the par value of Five Dollars ($5.00) per share (the "Common
Stock") and Three Million (3,000,000) shares of Preferred Stock of the par
value of One Dollar ($1.00) per share (the "Preferred Stock").
___ The amendment adopted by the corporation as set forth in full in
Exhibit A, attached hereto and made a part hereof.
8. (Check if the amendment restates the Articles):
___ The restated Articles of Incorporation supersede the original Articles
and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer thereof this 30/th/ day
-----
of April, 1990.
------- --
FIRST COMMONWEALTH FINANCIAL CORPORATION
---------------------------------------------
(Name of Corporation)
BY: /s/ David R. Tomb, Jr.
------------------------------------------
(Signature)
TITLE: VICE PRESIDENT, SECRETARY, TREASURER
---------------------------------------
A-2
<PAGE>
Microfilm Number _______ Filed with the Department of State on April 26, 1994
Entry Number 701291 ____________________________________________________
------ Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
In compliance with the requirements of 15 Pa. C.S. (S) 1915 (relating to
articles of amendment), the undersigned business corporation, desiring to amend
its Articles, hereby states that:
1. The name of the corporation is: FIRST COMMONWEALTH FINANCIAL CORPORATION
------------------------------------------
- --------------------------------------------------------------------------------
2. The (a) address of this corporation's current registered office in this
Commonwealth or (b) name of its commercial registered office provider and
the county of venue is (the Department is hereby authorized to correct the
following information to conform to the records of the Department):
(a) 601 Philadelphia Street Indiana PA 15701 Indiana
---------------------------------------------------------------------------
Number and Street City State Zip County
(b) ___________________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
3. The statute by or under which it was incorporated is: Business Corporation
--------------------
Law of 1933, Act No. 106, approved May 5, 1933, P.L. 364, as amended
---------------------------------------------------------------------------
4. The date of its incorporation is: November 15, 1982
-----------------------------------------
5. (Check, and if appropriate complete, one of the following):
X The amendment shall be effective upon filing these Articles of
---
Amendment in the Department of State.
___ The amendment shall be effective on _________ at _____________________
Date Hour
6. (Check one of the following):
X The amendment was adopted by the shareholders pursuant to 15 Pa.C.S.
---
(S) 1914(a) and (b).
___ The amendment was adopted by the board of directors pursuant to 15
Pa.C.S. (S) 1914(c).
7. (Check, and if appropriate complete, one of the following):
___ The amendment adopted by the corporation, set forth in full, is as
follows:
X The amendment adopted by the corporation as set forth in full in
---
Exhibit A, attached hereto and made a part hereof.
<PAGE>
8. (Check if the amendment restates the Articles):
___ The restated Articles of Incorporation supersede the original Articles
and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer thereof this 23/rd/ day
-------
of April , 1994.
------ --
FIRST COMMONWEALTH FINANCIAL CORPORATION
----------------------------------------
(Name of Corporation)
BY: /s/ David R. Tomb, Jr.
_____________________________________
(Signature)
TITLE: SECRETARY
---------------------------------
A-2
<PAGE>
Entity Number 701291
FIRST COMMONWEALTH FINANCIAL CORPORATION
601 Philadelphia
Street Indiana, Pennsylvania 15701
Exhibit A to
Articles of Amendment
RESOLVED, that the shareholders of First Commonwealth Financial Corporation
hereby adopt and approve the following resolutions:
"RESOLVED, that Article 5 of the Articles of Incorporation of the
Corporation be and it hereby is amended to read in its entirety as follows:
5. The aggregate number of shares that the corporation shall
have authority to issue is 3,000,000 shares of Preferred Stock, par value
$1 per share (the "Preferred Stock"), and 100,000,000 shares of Common
Stock, par value $1 per share (the "Common Stock").
The Board of Directors shall have the full authority permitted by
law to divide the authorized and unissued shares of Preferred Stock into
classes or series, or both, and to determine for any such class or series
its designation and the number of shares of the class or series and the
voting rights, preferences, limitations and special rights, if any, of the
shares of the class or series.
"RESOLVED, that upon the filing of Articles of Amendment in the
Pennsylvania Department of State for the foregoing amendments, the shares
of Common Stock, par value $5 per share, then issued and outstanding shall
be and they hereby are reclassified and changed into fully paid and
nonassessable shares of Common Stock, par value $1 per share, at the rate
of one share of Common Stock, par value $1 per share, for each share of
Common Stock, par value $5 per share; and the certificates for shares of
Common Stock of the Corporation then issued and outstanding shall without
any change or notation thereon continue to represent the same number of
shares of Common Stock of the Corporation but with a par value of $1 per
share."
A-3
<PAGE>
Microfilm Number _____ Filed with the Department of State on September 27, 1994
Entry Number 0701291 /s/ Robert M. Grant
------- --------------------------------------------------------
Secretary of the Commonwealth
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB:15-1926 (Rev 90)
In compliance with the requirements of 15 Pa. C.S. (S) 1926 (relating to
articles of merge or consolidation), the undersigned business corporation,
desiring to effect a merger, hereby states that:
1. The name of the corporation surviving the merger is: ______________________
FIRST COMMONWEALTH FINANCIAL CORPORATION
---------------------------------------------------------------------------
2. (Check and complete one of the following):
X The surviving corporation is a domestic business corporation and the
---
(a) address of its current registered office in this Commonwealth or
(b) name of its commercial registered office provider and the county
of venue is (the Department is hereby authorized to correct the
following information to conform to the records of the Department)
(a) 601 Philadelphia Street Indiana PA 15701 Indiana
---------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:_______________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
___ The surviving corporation is a qualified foreign business corporation
incorporated under the laws of __________________________ and the (a)
address of its current registered office in this Commonwealth or (b) name
of its commercial registered office provider and the county of venue is
(the Department is hereby authorized to correct the following information
to conform to the records of the Department):
(a) Not applicable
---------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:_______________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
___ The surviving corporation is a nonqualified foreign business corporation
incorporated under the laws of ____________________________________________
and the address of its principal office under the laws of such domicilliary
jurisdiction is:
Not applicable
---------------------------------------------------------------------------
Number and Street City State Zip County
<PAGE>
3. The name and the address of the registered office in this Commonwealth or
name of its commercial registered office provider and the county of venue
of each other domestic corporation and qualified foreign corporation which
is a party to the plan of merger are as follows:
Name of Corporation Address of Registered Office or Name
of Commercial Registered Office
Provider County
United National 15 South Main Street
Bancorporation Chambersburg, Pennsylvania 17201 Franklin
---------------------------------------------------------------------------
___________________________________________________________________________
___________________________________________________________________________
4. (Check, and if appropriate complete, one of the following):
X The plan of merger shall be effective upon filing these Articles of
---
Merger in the Department of State.
___ The plan of merger shall be effective on:________ at _________________
Date Hour
5. The manner in which the plan of merger was adopted by each domestic
corporation is as follows:
Name of corporation Manner of adoption
First Commonwealth Adopted by action of the board of directors of the
Financial Corporation corporation pursuant to 15 Pa.C.S. (S) 1924(b)(2)
---------------------------------------------------------------------------
United National Adopted by the directors and shareholders pursuant
Bancorporation to 15 Pa.C.S. (S) 1924(a)
---------------------------------------------------------------------------
___________________________________________________________________________
6. [Intentionally deleted]
7. (Check, and if appropriate complete, one of the following):
X The plan of merger as set forth in full in Exhibit A is attached
---
hereto and made a part hereof.
___ Pursuant to 15 Pa.C.S. (S) 1901 (relating to omission of certain
provisions from filed plans) the provisions, if any, of the plan of
merger that amend or constitute the operative Articles of
Incorporation of the surviving corporation as in effect subsequent to
the effective date of the plan are set forth in full in Exhibit A
attached hereto and made a part hereof. The full text of the plan of
merger is on file at the principal place of business of the surviving
corporation, the address of which is:
___________________________________________________________________________
Number and Street City State Zip County
A-2
<PAGE>
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned
corporation has caused these Articles of Merger to be signed by a duly
authorized officer thereof this 27/th/ day of September, 1994
----- ---------- --
UNITED NATIONAL BANCORPORATION FIRST COMMONWEALTH FINANCIAL CORPORATION
- ------------------------------ ----------------------------------------
(Name of Corporation) (Name of Corporation)
BY: /s/ Robert C. Williams BY: /s/ E. James Trimarchi
--------------------------- -------------------------------------
(Signature) (Signature)
TITLE: Vice Chairman and TITLE: Chairman and President
---------------------- ---------------------------------
President
----------------------
A-3
<PAGE>
Exhibit A
PLAN OF MERGER
PLAN OF MERGER (the "Plan") made by UNITED NATIONAL BANCORPORATION, a
Pennsylvania business corporation having its principal place of business at 15
South Main Street, Chambersburg, Pennsylvania ("United"), and FIRST COMMONWEALTH
FINANCIAL CORPORATION, a Pennsylvania business corporation having its principal
place of business at Old Courthouse Square, 22 North Sixth Street, Indiana,
Pennsylvania ("FCFC"). United and FCFC are hereinafter sometimes referred to as
the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, FCFC and United have entered into an Agreement and Plan of
Reorganization dated as of March 25, 1994 (the "Reorganization Agreement"),
which provides, among other things, for the execution of this Plan and the
acquisition of United by FCFC by means of the merger (the "Merger") of United
into FCFC;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of stating the
method, terms and conditions of the Merger, including the rights of the
shareholders of United, and such other details and provisions as are deemed
desirable, the parties hereto, each intending to be legally bound hereby, agree
as follows:
1. The Merger. Subject to the terms and conditions of this Plan and
----------
the Reorganization Agreement, and in accordance with the Pennsylvania Business
Corporation Law of 1988, as amended (the "Pennsylvania Business Corporation
Law"), on the Effective Date (as defined in Section 8(g) of the Reorganization
Agreement) United shall be merged into FCFC, which shall be the surviving
corporation.
2. Articles of Incorporation and By-Laws. Upon the Merger becoming
-------------------------------------
effective, the Articles of Incorporation and By-Laws of FCFC as in effect on the
Effective Date shall continue in effect without change therein by reason of the
Merger.
3. Conversion of United Shares.
---------------------------
(a) Subject to the provisions of Section 5 hereof with respect
to dissenting shares, each share of Common Stock, par value $2.50 per share, of
United ("United Common Stock") issued and outstanding immediately before the
Merger becomes effective shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into two shares of Common Stock,
par value $1 per share, of FCFC ("FCFC Common Stock").
(b) Conversion of Stock Options. At the Effective Date, all
---------------------------
rights with respect to United Common Stock pursuant to stock options or stock
appreciation rights ("United Options") granted by United under United's 1986
Stock Option Plan, which are outstanding at the Effective Date whether or not
then exercisable, shall be converted into and become rights with respect to FCFC
Common Stock, and FCFC shall assume each United Option in accordance with the
terms of the stock option plan under which it was issued and the stock option
agreement by which it is evidenced. From and after the Effective Date, (i) each
United Option assumed by FCFC may be exercised solely for shares of FCFC Common
Stock or cash in the case of stock appreciation rights, (ii) the number of
shares of FCFC Common Stock subject to each United Option shall be equal to the
number of shares of United Common Stock subject to such United Option
immediately prior to the Effective Date multiplied by two and (iii) the per
share exercise price under such United Option shall be adjusted by dividing the
per share exercise price under each such option by two and rounding down to the
nearest cent; provided, however, that the terms of each United Option shall, in
accordance with its terms, be subject to further adjustment as appropriate to
reflect any stock split, stock dividend, recapitalization or other similar
transaction subsequent to the Effective Date. It is intended that the foregoing
assumption shall be undertaken in a manner that will not constitute a
"modification" as defined in Section 424(h) of the Code as to any stock option
which is an "incentive stock
<PAGE>
option." As promptly as practicable after the Effective Date, FCFC shall take
all actions necessary to permit the issuance of FCFC Common Stock upon the
exercise of any United Stock Option in compliance with all applicable securities
laws, including the filing of any required registration statement under the
Securities Act of 1933, as amended, and the listing of such shares on the New
York Stock Exchange.
(c) Antidilution. If after the date hereof and prior to the
------------
Effective Date, FCFC or United shall declare a stock dividend or make
distributions upon or subdivide, split-up, reclassify, or combine its common
stock or preferred stock or declare a dividend or make a distribution of its
common stock or preferred stock in any security convertible into or exchangeable
for its common stock or preferred stock, then the conversion ratio shall be
appropriately adjusted. Nothing contained in this Section 3(c) shall be deemed
to permit any action which is otherwise prohibited by the Reorganization
Agreement.
4. Surrender and Exchange of United Stock Certificates. Upon the
---------------------------------------------------
Merger becoming effective, holders of certificates that represent shares of
United Common Stock outstanding immediately before the Merger becomes effective
(hereinafter called "Old Certificates") shall cease to be, and shall have no
rights as, shareholders of United, except the right to receive certificates for
the shares of FCFC Common Stock into which such shares are converted in the
Merger as provided herein. Old Certificates shall be exchangeable by the holders
thereof (upon surrender of such Old Certificates in the manner provided in the
transmittal materials described below) for a certificate or certificates for
that number of shares of FCFC Common Stock equal to the product of two times the
number of shares of United Common Stock represented by the Old Certificates so
surrendered. Each Old Certificate shall after the Merger only represent the
shares of FCFC Common Stock into which the shares of United Common Stock
previously represented has been converted in the Merger.
As promptly as practicable after the Effective Date, FCFC shall send
or cause to be sent to each holder of record of United Common Stock as of the
close of business on the Effective Date transmittal materials for use in
surrendering Old Certificates in exchange for certificates representing FCFC
Common Stock. The letter of transmittal will contain instructions with respect
to the surrender of Old Certificates.
If any dividend on FCFC Common Stock is declared by FCFC after the
Effective Date, the declaration shall include dividends on all whole shares of
FCFC Common Stock into which shares of United Common Stock have been converted
under this Plan, but no former holder of record of United Common Stock will be
entitled to receive a distribution of any such dividend until surrender of the
shareholder's Old Certificates shall have been effected in accordance with the
instructions furnished by FCFC. Upon surrender for exchange of a shareholder's
Old Certificates, such shareholder shall be entitled to receive from FCFC an
amount equal to all such dividends declared (without interest thereon and less
the amount of taxes, if any, which may have been imposed or paid thereon), and
for which the payment date has occurred, on the whole shares of FCFC Common
Stock into which the shares of United Common Stock represented by such Old
Certificates have been converted.
After the Merger becomes effective, there shall be no transfers on the
stock transfer books of United or FCFC of shares of United Common Stock. If,
after the Effective Date, Old Certificates are presented for transfer, they
shall be cancelled and certificates representing whole shares of FCFC Common
Stock shall be issued or paid in exchange therefor as provided herein.
5. Dissenters' Rights. The rights and remedies of a dissenting
------------------
shareholder under Section 1930 and Subchapter D of Chapter 15 of the
Pennsylvania Business Corporation Law shall be afforded to any holder of United
Common Stock who objects to this Plan and who takes the necessary steps to
perfect the rights of a dissenting shareholder. FCFC, as the surviving
corporation, will make whatever payments are to be made to any dissenting
shareholders in the exercise of such rights.
6. Articles of Merger. Upon fulfillment of all conditions in Section
------------------
2 of the Reorganization Agreement and completion of the Closing (as defined in
Section 8(a) of the Reorganization Agreement), United and FCFC will execute
Articles of Merger in compliance with the requirements of the Pennsylvania
Business
A-2
<PAGE>
Corporation Law and will deliver them for filing with the Pennsylvania
Department of State, specifying that the Merger shall be effective as of the
close of business on the last day of the month in which the Closing occurs or
such other date and time as the parties may agree.
7. Termination and Amendment. Notwithstanding approval by the
-------------------------
shareholders of United, this Plan shall be terminated and the Merger shall be
abandoned in the event of termination of the Reorganization Agreement as
provided therein. If there is such termination after delivery of Articles of
Merger to the Pennsylvania Department of State, such Articles of Merger shall be
withdrawn, terminated and cancelled. Subject to applicable law, this Plan may be
amended in any respect by an instrument in writing signed by an authorized
officer of each of FCFC and United before or after the shareholders' meeting
referred to in Section 6(a) of the Reorganization Agreement at any time before
the Merger becomes effective, except that no such amendment after such
shareholders' meeting shall affect the rates of exchange provided in Sections 3
and 4 of this Plan.
8. Effect of Merger. On the Effective Date, the separate existence
----------------
of United shall cease, and all of the property (real, personal and mixed),
rights, powers, duties and obligations of United and FCFC shall be taken and
deemed to be transferred to and vested in FCFC, as the surviving corporation,
without further act or deed, all as provided in the Pennsylvania Business
Corporation Law.
9. Further Assurances. If at any time FCFC shall consider or be
------------------
advised that any further assignments, conveyances or assurances in law are
necessary or desirable to vest, perfect or confirm of record in FCFC the title
to any property or rights of the Constituent Corporations, or otherwise to carry
out the provisions hereof, the proper officers and directors of the Constituent
Corporations immediately before the Effective Date shall, on behalf of the
Constituent Corporations, execute and deliver any and all proper deeds,
assignments and assurances in law, and do all things necessary or proper to
vest, perfect or confirm title to such property or rights in FCFC and otherwise
to carry out the provisions hereof.
10. Counterparts; Headings. This Plan may be executed in several
----------------------
counterparts, each of which will constitute an original. The headings and
captions contained herein are for reference purposes only and do not constitute
a part hereof.
A-3
<PAGE>
11. Governing Law. This Plan is governed by and shall be construed
-------------
and enforced in accordance with the law of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed this Plan this 25th day
of March, 1994.
Attest: UNITED NATIONAL BANCORPORATION
/s/ Dorothy J. Jamison By /s/ Robert C. Williams
- --------------------------------------- -------------------------------------
Dorothy J. Jamison, Vice President and Robert C. Williams, Vice Chairman,
Secretary President and Chief Executive
Officer
[Corporate Seal]
Attest: FIRST COMMONWEALTH FINANCIAL
CORPORATION
/s/ David R. Tomb, Jr. By /s/ Joseph E. O'Dell
- --------------------------------------- -------------------------------------
David R. Tomb, Jr., Secretary Joseph E. O'Dell, Senior Executive
Vice President and Chief Operating
Officer
[Corporate Seal]
A-4
<PAGE>
<TABLE>
<S> <C>
Microfile Number 9778-1546 Filed with the Department of State on Sept. 29, 1997
----------------------- ------------------------------
Entry Number 701291
--------------------------- _____________________________________________________________________
Secretary of the Commonwealth
</TABLE>
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB:15-1926 (Rev 90)
In compliance with the requirements of 15 Pa.C.S. (S) 1926 (relating
to articles of merger or consolidation), the undersigned business corporations,
desiring to effect a merger, hereby state that:
1. The name of the corporation surviving the merger is: FIRST
-----
COMMONWEALTH FINANCIAL CORPORATION
---------------------------------------------------------------------------
2. (Check and complete one of the following):
___ The surviving corporation is a domestic business corporation and the
(a) address of its current registered office in this Commonwealth or
(b) name of its commercial registered office provider and the county
of venue is (the Department is hereby authorized to correct the
following information to confirm to the records of the Department):
(a) 601 PHILADELPHIA ST. INDIANA INDIANA PA 15701 INDIANA
--------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the
corporation is located for venue and official publication purposes.
____ The surviving corporation is a qualified foreign business
corporation incorporated under the laws of __________ and the (a)
address of its current registered office in this Commonwealth or (b)
name of its commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct the
following information to conform to the records of the Department):
(a) ____________________________________________________________________
Number and Street City State Zip County
(b) c/o:________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the
corporation is located for venue and official publication purposes.
___ The surviving corporation is a nonqualified foreign business
corporation incorporated under the laws of ___________ and the
address of its principal office under the laws of such domicilliary
jurisdiction is:
___________________________________________________________________________
Number and Street City State Zip County
3. The name and the address of the registered office in this Commonwealth or
name of its commercial registered office provider and the county of venue
of each other domestic business corporation and qualified foreign business
corporation which is a party to the plan of merger are as follows:
Name of Corporation Address of Registered Office or Name of Commercial
Registered Office Provider County
FIRST COMMONWEALTH FINANCIAL CORPORATION, 601 PHILADELPHIA ST., INDIANA, PA
---------------------------------------------------------------------------
15701 INDIANA
---------------------------------------------------------------------------
RELIABLE FINANCIAL CORPORATION, 428 STATION ST., BRIDGEVILLE, PA 15017
---------------------------------------------------------------------------
ALLEGHENY
---------------------------------------------------------------------------
---------------------------------------------------------------------------
<PAGE>
4. (Check, and if appropriate complete, one of the following):
___ The plan of merger shall be effective upon filing these Articles
of Merger in the Department of State.
X The plan of merger shall be effective on September 29, 1997 at
--- ------------------
11:59 p.m. Date
-------------
Hour
5. The manner in which the plan of merger was adopted by each domestic
corporation is as follows:
FIRST COMMONWEALTH FINANCIAL CORPORATION, ADOPTED BY ACTION OF
---------------------------------------------------------------------------
THE BOARD OF DIRECTORS PURSUANT TO 15 PA.C.S. (S) 1924(b)(1)
---------------------------------------------------------------------------
RELIABLE FINANCIAL CORPORATION, ADOPTED BY ACTION OF THE BOARD OF
---------------------------------------------------------------------------
DIRECTORS PURSUANT TO 15 PA.C.S. (S) 1924(b)(1)
---------------------------------------------------------------------------
6. [INTENTIONALLY DELETED]
7. (Check, and if appropriate complete, one of the following):
____ The plan of merger is set forth in full in Exhibit A attached
hereto and made a part hereof.
X Pursuant to 15 Pa.C.S. (S) 1901 (relating to omission of certain
---- provisions from filed plans) the provisions, if any, of the plan
of merger that amend or constitute the operative Articles of
Incorporation of the surviving corporation as in effect subsequent
to the effective date of the plan are set forth in full in Exhibit
A attached hereto and made a part hereof. The full text of the
plan of merger is on file at the principal place of business of
the surviving corporation, the address of which is:
<TABLE>
<S> <C>
OLD COURTHOUSE SQUARE, 22 NORTH SIXTH STREET, INDIANA, PA 15701
-----------------------------------------------------------------------------------------------
Number and Street State Zip
</TABLE>
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned
corporation has caused these Articles of Merger to be signed by a duly
authorized officer thereof this 24/th/ day of September, 1997.
----- ---------- ----
FIRST COMMONWEALTH FINANCIAL CORPORATION
----------------------------------------------
(Name of Corporation)
BY: /s/ Joseph E. O'Dell
------------------------------------------
(Signature)
TITLE: President and Chief Executive Officer
---------------------------------------
RELIABLE FINANCIAL CORPORATION
----------------------------------------------
(Name of Corporation)
BY: /s/ Edward H. Eiter, Jr.
-------------------------------------------
TITLE: Executive Vice President, Secretary
---------------------------------------
A-2
<PAGE>
EXHIBIT A
TO
ARTICLES OF MERGER
------------------
The Articles of Incorporation of the surviving corporation are amended to read:
1. The registered office of the surviving corporation is changed to: Old
Courthouse Square, 22 North Sixth Street, Indiana, Indiana County, PA 15701.
A-3
<PAGE>
<TABLE>
<S> <C>
Microfile Number________ Filed with the Department of State on Dec. 18, 1998
----------------------
Entry Number 701291 /s/ Kim Pizzingrilli
---------- ---------------------------------------
Secretary of the Commonwealth
</TABLE>
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB:15-1926 (Rev 90)
In compliance with the requirements of 15 Pa.C.S. (S) 1926 (relating to
articles of merger or consolidation), the undersigned business corporations,
desiring to effect a merger, hereby state that:
1. The name of the corporation surviving the merger is: FIRST COMMONWEALTH
------------------
FINANCIAL CORPORATION
------------------------------------------------------------------------
2. (Check and complete one of the following):
[x] The surviving corporation is a domestic business corporation and the
(a) address of its current registered office in this Commonwealth or
(b) name of its commercial registered office provider and the county
of venue is (the Department is hereby authorized to correct the
following information to confirm to the records of the Department):
(a) Old Courthouse Square 22 North Sixth Street, Indiana, PA 15701
---------------------------------------------------------------------
Indiana
---------------------------------------------------------------------
Number and Street City State Zip
County
(b) c/o:__________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is located
for venue and official publication purposes.
__ The surviving corporation is a qualified foreign business corporation
incorporated under the laws of________________and the (a) address of
its current registered office in this Commonwealth or (b) name of its
commercial registered office provider and the county of venue is (the
Department is hereby authorized to correct the following information
to conform to the records of the Department):
(a) ______________________________________________________________________
Number and Street City State Zip County
(b) c/o:__________________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the corporation
is located for venue and official publication purposes.
___ The surviving corporation is a nonqualified foreign business
corporation incorporated under the laws of and the address of its
principal office under the laws of such domicillary jurisdiction is:
___________________________________________________________________________
Number and Street City State Zip County
3. The name and the address of the registered office in this Commonwealth or
name of its commercial registered office provider and the county of venue
of each other domestic business corporation and qualified foreign business
corporation which is a party to the plan of merger are as follows:
<TABLE>
<S> <C>
Name of Corporation Address of Registered Office or Name of Commercial Registered Office Provider County
Southwest National Corporation 111 South Main Street,Greensburg, PA 15601 Westmoreland
------------------------------------------------------------------------------------------------------------
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
</TABLE>
A-4
<PAGE>
4. (Check, and if appropriate complete, one of the following):
__ The plan of merger shall be effective upon filing these Articles of
Merger in the Department of State.
X The plan of merger shall be effective on December 31, 1998 at
------------------
Date
11.59 p.m
---------
Hour
5. The manner in which the plan of merger was adopted by each domestic
corporation is as follows:
Name of Corporation Manner of Adoption
First Commonwealth Financial Corporation Adopted by the Directors
---------------------------------------------------------------------------
pursuant to 15 Pa.C.S.A.
(S)1924(b)(1)
---------------------------------------------------------------------------
Southwest National Corporation Adopted by the Directors and
---------------------------------------------------------------------------
Shareholders pursuant to 15 Pa.C.S.A.
(S)1924(a)
---------------------------------------------------------------------------
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6. [INTENTIONALLY DELETED]
7. (Check, and if appropriate complete, one of the following):
X The plan of merger is set forth in full in Exhibit A attached hereto
--- and made a part hereof.
___ Pursuant to 15 Pa.C.S. (S) 1901 (relating to omission of certain
provisions from filed plans) the provisions, if any, of the plan of
merger that amend or constitute the operative Articles of
Incorporation of the surviving corporation as in effect subsequent to
the effective date of the plan are set forth in full in Exhibit A
attached hereto and made a part hereof. The full text of the plan of
merger is on file at the principal place of business of the surviving
corporation, the address of which is:
-------------------------------------------------------------------------
Number and Street City State Zip County
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned
corporation has caused these Articles of Merger to be executed this 15/th/ day
of December, 1998.
FIRST COMMONWEALTH FINANCIAL CORPORATION
-------------------------------------------
(Name of Corporation)
By: /s/ Joseph E. O'Dell
----------------------------------------
(Signature)
Name: Joseph E. O'Dell
Title:President and Chief Executive
Officer
SOUTHWEST NATIONAL CORPORATION
-------------------------------------------
(Name of Corporation)
By: /s/ David S. Dahlmann
----------------------------------------
(Signature)
Title:David S. Dahlmann
President and Chief Executive Officer
-------------------------------------
<PAGE>
AGREEMENT AND PLAN OF MERGER
dated as of July 15, 1998
by and between
SOUTHWEST NATIONAL CORPORATION
and
FIRST COMMONWEALTH FINANCIAL CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
I. THE MERGER; EFFECTS OF THE MERGER.................................... 2
1.01. The Merger.................................................... 2
II. CONSIDERATION........................................................ 2
2.01. Merger Consideration.......................................... 2
2.02. Shareholder Rights; Stock Transfers........................... 3
2.03. Fractional Shares............................................. 3
2.04. Exchange Procedures........................................... 3
2.05. Anti-Dilution Provisions...................................... 5
2.06. Treasury Shares............................................... 5
III. ACTIONS PENDING MERGER............................................... 5
3.01. Ordinary Course............................................... 5
3.02. Capital Stock................................................. 6
3.03. Dividends; Changes in Stock................................... 6
3.04. Compensation; Employment Agreements; Etc...................... 6
3.05. Benefit Plans................................................. 6
3.06. Acquisitions and Dispositions................................. 7
3.07. Amendment..................................................... 7
3.08. Accounting Methods............................................ 7
3.09. Adverse Actions............................................... 7
3.10. Indebtedness.................................................. 7
3.11. Agreements.................................................... 7
IV. REPRESENTATIONS AND WARRANTIES....................................... 8
4.01. Disclosure Letters............................................ 8
4.02. Standard...................................................... 8
4.03. Representations and Warranties................................ 8
V. COVENANTS............................................................ 17
5.01. Best Efforts.................................................. 17
5.02. Shareholder Approvals......................................... 17
5.03. Registration Statement........................................ 17
5.04. Press Releases................................................ 18
5.05 Access; Information........................................... 18
5.06. Acquisition Proposals......................................... 19
5.07. Affiliate Agreements.......................................... 19
5.08. Takeover Laws................................................. 20
5.09. Shares Listed................................................. 20
5.10. Regulatory Applications....................................... 20
5.11. Indemnification............................................... 21
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
5.12. Benefit Plans; Employment Contracts........................... 22
5.13. Certain Director and Officer Positions........................ 22
5.14. Notification of Certain Matters............................... 23
5.15. Dividend Adjustment........................................... 23
5.16. Post-Merger Operations........................................ 23
VI. CONDITIONS TO CONSUMMATION OF THE MERGER............................. 24
6.01. Shareholder Vote.............................................. 24
6.02. Regulatory Approvals.......................................... 24
6.03. Third Party Consents.......................................... 24
6.04. No Injunction, Etc............................................ 24
6.05. Pooling Letters............................................... 24
6.06. Representations, Warranties and Covenants of FCFC............. 25
6.07. Representations, Warranties and Covenants of Southwest........ 25
6.08. Effective Registration Statement.............................. 25
6.09. Blue-Sky Permits.............................................. 25
6.10. Tax Opinion................................................... 25
6.11. NYSE Listing.................................................. 25
VII. TERMINATION.......................................................... 25
7.01. Termination................................................... 26
7.02. Effect of Termination and Abandonment......................... 27
VIII. OTHER MATTERS........................................................ 27
8.01. Survival...................................................... 28
8.02. Waiver; Amendment............................................. 28
8.03. Counterparts.................................................. 28
8.04. Governing Law................................................. 28
8.05. Expenses...................................................... 28
8.06. Confidentiality............................................... 28
8.07. Notices....................................................... 28
8.08. Definitions................................................... 29
8.09. Entire Understanding; No Third Party Beneficiaries............ 30
8.10. Headings...................................................... 30
</TABLE>
-ii-
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 15th day of July, 1998 (this
"Plan"), by and between SOUTHWEST NATIONAL CORPORATION ("Southwest"), and FIRST
COMMONWEALTH FINANCIAL CORPORATION ("FCFC").
RECITALS:
A. Southwest. Southwest is a corporation duly organized and existing in
---------
good standing under the laws of the Commonwealth of Pennsylvania, with its
principal executive offices located in Greensburg, Pennsylvania. Southwest has
10,000,000 authorized shares of common stock, each of $2.50 par value
("Southwest Common Stock"), of which as of June 30, 1998, 137,049 shares of
Southwest Common Stock were issued and held by Southwest as treasury stock and
3,043,738 shares of Southwest Common Stock were issued and outstanding.
B. FCFC. FCFC is a corporation duly organized and existing in good
----
standing under the laws of the Commonwealth of Pennsylvania, with its principal
executive offices located in Indiana, Pennsylvania. FCFC has 100,000,000
authorized shares of common stock, each of $1.00 par value ("FCFC Common
Stock"), of which, as of June 30, 1998, 22,100,633 shares of FCFC Common Stock
were issued and outstanding.
C. Stock Option Agreement. As a condition and inducement to FCFC's
----------------------
willingness to enter into this Plan, concurrently with the execution and
delivery of this Plan, Southwest has executed and delivered a Stock Option
Agreement with FCFC (the "Stock Option Agreement") in substantially the form
attached hereto as Exhibit A, pursuant to which Southwest is granting to FCFC an
option to purchase, under certain circumstances, shares of Southwest Common
Stock.
D. Intention of the Parties. It is the intention of the parties to this
------------------------
Plan that the Merger (as defined in Section 1.01) shall (i) be accounted for as
a "pooling of interests" under generally accepted accounting principles and (ii)
qualify as a reorganization under Section 368(a) of the Internal Revenue Code of
1986, as amended (the "Code").
E. Approvals. The Board of Directors of each of Southwest and FCFC (i)
---------
has determined that this Plan and the transactions contemplated hereby are
consistent with, and in furtherance of, its respective business strategies and
(ii) has approved, at meetings of each of such Boards of Directors, this Plan.
NOW, THEREFORE, in consideration of their mutual promises and obligations,
the parties hereto approve, adopt and make this Plan and prescribe the terms and
conditions hereof and the manner and basis of carrying it into effect, which
shall be as follows:
<PAGE>
I. THE MERGER; EFFECTS OF THE MERGER.
1.01 The Merger. At the Effective Time (as defined in Section 1.01):
----------
(A) The Continuing Corporation. Southwest shall merge with and into
--------------------------
FCFC (the "Merger"), the separate existence of Southwest shall cease and FCFC
shall survive and continue to exist as a Pennsylvania corporation (FCFC
sometimes being referred to herein as the "Continuing Corporation" after the
Effective Time).
(B) Effective Time of the Merger. Subject to the provisions of this
----------------------------
Plan, articles of merger (the "Articles of Merger") shall be duly prepared,
executed and acknowledged by FCFC and Southwest, and thereafter filed with the
office of the Secretary of the Commonwealth of Pennsylvania, as provided in the
Pennsylvania Business Corporation Law (the "BCL"), on the Closing Date (as
defined in Section 1.01(C)). The Merger shall become effective upon the filing
of the Articles of Merger with the Secretary of the Commonwealth of Pennsylvania
or at such time thereafter as is provided in the Articles of Merger (the
"Effective Time"), in accordance with ((S))1928 of the Pennsylvania Business
Corporation Law (the "BCL"). The Merger shall have the effects prescribed in
((S))1929 of the BCL.
(C) Closing. The closing of the Merger (the "Closing") will take
-------
place at 10:00 a.m. on a date to be specified by the parties, which shall be the
first day which is at least two business days after satisfaction or waiver
(subject to applicable law) of the conditions (excluding conditions that, by
their terms, cannot be satisfied until the Closing Date) set forth in Article VI
(the "Closing Date"), unless another time or date is agreed to in writing by the
parties hereto. The Closing shall be held at such location as is agreed to in
writing by the parties hereto.
(D) Articles of Incorporation and By-laws. The articles of
-------------------------------------
incorporation and by-laws of the Continuing Corporation shall be those of FCFC,
as in effect immediately prior to the Effective Time.
II. CONSIDERATION.
2.01 Merger Consideration. Subject to the provisions of this Plan, at the
--------------------
Effective Time, automatically by virtue of the Merger and without any action on
the part of any shareholder.
(A) Outstanding FCFC Common Stock. Each share of FCFC Common Stock
-----------------------------
issued and outstanding immediately prior to the Effective Time shall be
unchanged and shall remain issued and outstanding common stock of the Continuing
Corporation. Shares of FCFC Common Stock owned by Southwest or its wholly-owned
subsidiaries (other than shares held in trust, managed, custodial or nominee
accounts and the like, that in any such case are beneficially owned by third
parties (any such shares, "Trust Account shares") and shares acquired in respect
of debts previously contracted (any such shares, "DPC shares")) shall become
treasury stock of FCFC.
-2-
<PAGE>
(B) Outstanding Southwest Common Stock. Each share (excluding shares
----------------------------------
held by Southwest or any of its wholly-owned subsidiaries (as defined in Section
8.08) ("Treasury Shares") or by FCFC or any of its wholly-owned subsidiaries, in
each case other than Trust Account shares or DPC shares) of Southwest Common
Stock issued and outstanding immediately prior to the Effective Time shall
become and be converted into the right to receive 2.9 shares (subject to
possible adjustment as set forth in Sections 2.05 and 7.01(D), the "Exchange
Ratio") of FCFC Common Stock. All shares of Southwest Common Stock owned by
Southwest as Treasury Shares and all shares of Southwest Common Stock owned by
FCFC or a wholly-owned subsidiary of FCFC or of Southwest (other than Trust
Account shares or DPC shares) shall be cancelled and retired and shall cease to
exist and no shares of FCFC or other consideration shall be deliverable in
exchange therefor.
2.02 Shareholder Rights; Stock Transfers. At the Effective Time, holders
-----------------------------------
of Southwest Common Stock shall cease to be, and shall have no rights as,
shareholders of Southwest, other than to receive the consideration provided
under this Article II. After the Effective Time, there shall be no transfers on
the stock transfer books of Southwest or the Continuing Corporation of shares of
Southwest Common Stock.
2.03 Fractional Shares. Notwithstanding any other provision hereof, no
-----------------
fractional shares of FCFC Common Stock and no certificates or scrip therefor, or
other evidence of ownership thereof, will be issued in the Merger; instead, FCFC
shall pay to each holder of Southwest Common Stock who would otherwise be
entitled to a fractional share an amount in cash determined by multiplying such
fraction by the average of the last sale prices of FCFC Common Stock (as
reported in The Wall Street Journal or, if not reported therein, in another
authoritative source), for the ten trading days immediately preceding the
Effective Date.
2.04 Exchange Procedures.
-------------------
(A) As of the Effective Time, FCFC shall, or shall cause to be
deposited, with The Bank of New York (or another bank selected by FCFC and
reasonably acceptable to Southwest) (the "Exchange Agent"), for the benefit of
the holders of shares of Southwest Common Stock, for exchange in accordance with
Sections 2.01 and 2.03, certificates representing the shares of FCFC Common
Stock and the cash in lieu of fractional shares (such cash and certificates for
shares of FCFC Common Stock, together with any dividends or distributions with
respect thereto, being hereinafter referred to as the "Exchange Fund") to be
issued in exchange for outstanding shares of Southwest Common Stock.
(B) Promptly after the Effective Time, FCFC shall cause the Exchange
Agent to mail to each holder of record of a certificate or certificates
previously representing shares of Southwest Common Stock (each a "Certificate")
the following: (i) a letter of transmittal specifying that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent, which shall be in a form and
contain any other provisions as are mutually agreeable to FCFC and Southwest;
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates
-3-
<PAGE>
representing shares of FCFC Common Stock and cash in lieu of fractional shares.
Upon the proper surrender of a Certificate to the Exchange Agent, together with
a properly completed and duly executed letter of transmittal, the holder of such
Certificate shall be entitled to receive in exchange therefor (x) a certificate
representing that number of whole shares of FCFC Common Stock and (y) a check
representing the amount of cash in lieu of any fractional shares and unpaid
dividends and distributions, if any, which such holder has the right to receive
in respect of the Certificate surrendered pursuant to the provisions of Sections
2.01 and 2.03, and the Certificate so surrendered shall forthwith be canceled.
No interest will be paid or accrued on the cash in lieu of fractional shares and
unpaid dividends and distributions, if any, payable to holders of Certificates.
In the event of a transfer of ownership of any shares of Southwest Common Stock
not registered in the transfer records of Southwest, a certificate representing
the proper number of shares of FCFC Common Stock, together with a check for the
cash to be paid in lieu of fractional shares, may be issued to the transferee if
the Certificate representing such Southwest Common Stock is presented to the
Exchange Agent, accompanied by documents sufficient (1) to evidence and effect
such transfer and (2) to evidence that all applicable stock transfer taxes have
been paid.
(C) Whenever a dividend or other distribution is declared by FCFC on
the FCFC Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Plan; provided that after the 30th day
following the Effective Date no dividend or other distribution declared or made
on the FCFC Common Stock shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of FCFC Common Stock represented thereby
until the holder of such Certificate shall duly surrender such Certificate in
accordance with this Section 2.04. Following such surrender of any such
Certificate, there shall be paid to the holder of the certificates representing
whole shares of FCFC Common Stock issued in exchange therefor, without interest,
(i) at the time of such surrender, the amount of dividends or other
distributions having a record date after the Effective Time theretofore payable
with respect to such whole shares of FCFC Common Stock and not yet paid and (ii)
at the appropriate payment date, the amount of dividends or other distributions
having (x) a record date after the Effective Time but prior to surrender and (y)
a payment date subsequent to surrender payable with respect to such whole shares
of FCFC Common Stock.
(D) Any portion of the Exchange Fund (including the proceeds of any
investments thereof and any FCFC Common Stock) that remains unclaimed by the
shareholders of Southwest for six months after the Effective Time shall be
repaid to FCFC. Any shareholders of Southwest who have not theretofore complied
with this Section 2.04 shall thereafter look only to FCFC for payment of their
shares of FCFC Common Stock, cash in lieu of fractional shares and any unpaid
dividends and distributions on the FCFC Common Stock deliverable in respect of
each share of Southwest Common Stock such shareholder holds as determined
pursuant to this Plan, in each case, without any interest thereon. If
outstanding certificates for shares of the Southwest Common Stock are not
surrendered or the payment for them not claimed prior to the date on which such
payments would otherwise escheat to or become the property of any governmental
unit or agency, the unclaimed items shall, to the extent permitted by abandoned
properly and any other applicable law, become the property of FCFC (and to the
extent not in its
-4-
<PAGE>
possession shall be paid over to it), free and clear of all claims or interest
of any person previously entitled to such claims. Notwithstanding the foregoing,
none of FCFC, the Exchange Agent or any other person shall be liable to any
former holder of the Southwest Common Stock for any amount delivered to a public
body or official pursuant to applicable abandoned property, escheat or similar
laws.
(E) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by FCFC, the
posting by such person of a bond in such amount as FCFC may direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the shares of FCFC Common Stock and cash in lieu of fractional
shares (and unpaid dividends and distributions thereon) deliverable in respect
thereof pursuant to this Plan.
(F) Notwithstanding anything in this Plan to the contrary, for a
period of 90 days after the Effective Date holders of Certificates shall be
entitled to vote the number of whole shares of FCFC Common Stock into which
their Southwest Common Stock was converted in the Merger as holders of such
shares of FCFC Common Stock notwithstanding that such Certificates shall not
have been exchanged.
2.05 Anti-Dilution Provisions. In the event FCFC changes (or establishes a
------------------------
record date for changing) the number of shares of FCFC Common Stock issued and
outstanding prior to the Effective Date as a result of a stock split, stock
dividend, recapitalization or similar transaction with respect to the
outstanding FCFC Common Stock and the record date therefor shall be prior to the
Effective Date, the Exchange Ratio shall be proportionately adjusted.
2.06 Treasury Shares. Each of the shares of Southwest Common Stock held as
---------------
Treasury Shares immediately prior to the Effective Time shall be canceled and
retired at the Effective Time and no consideration shall be issued in exchange
therefor.
III. ACTIONS PENDING MERGER.
From the date hereof until the Effective Time, except as expressly
contemplated in this Plan, (i) without the prior written consent of FCFC (which
consent shall not be unreasonably withheld or delayed) Southwest will not, and
will cause each of its subsidiaries not to, and (ii) without the prior written
consent of Southwest (which consent shall not be unreasonably withheld or
delayed) FCFC will not, and will cause each of its subsidiaries not to:
3.01 Ordinary Course. Conduct the business of it and its subsidiaries
---------------
other than in the ordinary and usual course or, to the extent consistent
therewith, fail to use reasonable efforts to preserve intact their business
organizations and assets and maintain their rights, franchises and existing
relations with customers, suppliers, employees and business associates, or
knowingly take any action that would, or might reasonably be expected to (unless
such action is required by law or sound business banking practice) (i) adversely
affect the ability of any party to obtain any
-5-
<PAGE>
necessary approvals of any Regulatory Authorities (as defined in Section
4.03(1)), required for the transactions contemplated hereby without the
imposition of any burdensome condition of the type referred to in Section 6.02
or (ii) adversely affect its ability to perform any of its material obligations
under this Plan, provided that nothing in this Plan shall be deemed to restrict
the ability of a party to exercise its rights under the applicable Stock Option
Agreement.
3.02 Capital Stock. Other than (i) as Previously Disclosed in Section
-------------
4.03(C) of its Disclosure Letter (as defined in Section 4.01), (ii) pursuant to
the exercise of stock options outstanding on the date hereof or thereafter
issued as permitted by this Section 3.02, (iii) in connection with acquisitions
of businesses permitted in Section 3.06, (iv) in the case of FCFC, pursuant to
employee benefit plans or programs in effect on the date of this Plan, or (v)
under the Stock Option Agreement, (x) issue, sell or otherwise permit to become
outstanding any additional shares of capital stock, any stock appreciation
rights, or any Rights (as defined in Section 8.08), (y) enter into any agreement
with respect to the foregoing, or (z) permit additional shares of capital stock
to become subject to new grants of employee stock options, stock appreciation
rights, or similar stock-based employee rights prior to the Effective Time.
3.03 Dividends; Changes in Stock. Unless action is required pursuant to
---------------------------
Section 5.15, (1) make, declare or pay any dividend on or in respect of, or
declare or make any distribution on any shares of its capital stock, except (A)
Southwest may continue the declaration and payment of regular quarterly cash
dividends of $0.35 per share of Southwest Common Stock and FCFC may continue the
declaration and payment of regular quarterly cash dividends of $0.22 per share
of FCFC Common Stock, in each case with usual record and payment dates for such
dividends in accordance with such parties' past dividend practice, and (B) for
dividends by a wholly-owned subsidiary of such party, and (2) except as
Previously Disclosed in Section 3.03 of its Disclosure Letter, directly or
indirectly combine, redeem, reclassify, purchase or otherwise acquire, any
shares of its capital stock (other than acquisition of Trust Account shares or
DPC shares in the ordinary course of business).
3.04 Compensation; Employment Agreements; Etc. In the case of Southwest
-----------------------------------------
and its subsidiaries, except as permitted by Section 5.12, enter into or amend
any written employment, severance or similar agreements or arrangements with any
of its directors, officers or employees, or grant any salary or wage increase or
increase any employee benefit (including incentive or bonus payments), except
for (i) normal individual increases in compensation to employees in the ordinary
course of business consistent with past practice (including taking into account
deferred increases) or (ii) other changes as may be required by law or to
satisfy contractual obligations existing as of the date hereof consistent with
past practice, which to the extent practicable have been Previously Disclosed in
Section 3.04 of its Disclosure Letter.
3.05 Benefit Plans. In the case of Southwest and its subsidiaries, enter
-------------
into or modify (except as may be required by applicable law or to satisfy
contractual obligations existing as of the date hereof, which have been
Previously Disclosed in Section 3.05 of its Disclosure Letter) any pension,
retirement, stock option, stock purchase, savings, profit sharing, deferred
compensation, consulting, bonus, group insurance or other employee benefit,
incentive or welfare contract, plan or arrangement, or any trust agreement
related thereto, in respect of any of
-6-
<PAGE>
its directors, officers or other employees, including without limitation taking
any action that accelerates the vesting or exercise of any benefits payable
thereunder.
3.06 Acquisitions and Dispositions. Except as Previously Disclosed in
-----------------------------
Section 3.06 of its Disclosure Letter and except for dispositions and
acquisitions of assets in the ordinary and usual course of business consistent
with past practice, dispose of or discontinue any portion of its assets,
business or properties, which is material to it and its subsidiaries taken as a
whole, or merge or consolidate with, or acquire (other than by way of
foreclosures or acquisitions of control in a bona fide fiduciary capacity or in
satisfaction of debts previously contracted in good faith, in each case in the
ordinary and usual course of business consistent with past practice) all or any
portion of, the business or property of any other entity (any of the foregoing,
a "Business Combination Transaction"), except that FCFC may enter into an
agreement or agreements for, and may consummate, Business Combination
Transactions in which the aggregate purchase price or prices paid by FCFC and/or
subsidiaries does not exceed $10,000,000 or the aggregate number of shares of
FCFC Common Stock issuable does not exceed 10% of the number of such shares
outstanding on June 30, 1998 (the "10% Limit"). Notwithstanding the foregoing,
with the prior consent of a majority of the Southwest Board of Directors, FCFC
may enter into an agreement or agreements for Business Combination Transactions
in which the aggregate purchase price or prices paid exceeds $10,000,000 or
includes shares of FCFC Common Stock in excess of the 10% Limit.
3.07 Amendment. Amend its articles of incorporation or by-laws.
---------
3.08 Accounting Methods. Implement or adopt any change in its, accounting
------------------
principles, practices or methods, other than as may be required by generally
accepted accounting principles.
3.09 Adverse Actions. (1) Knowingly take any action that would, or is
---------------
reasonably likely to, prevent or impede the Merger from qualifying (i) for
pooling-of-interests accounting treatment or (ii) as a reorganization within the
meaning of Section 368(a) of the Code; or (2) knowingly take any action that is
intended or is reasonably likely to result in (w) any of its representations and
warranties set forth in this Plan being or becoming untrue in any material
respect at any time prior to the Effective Time, (x) any of the conditions to
the Merger set forth in Article VI not being satisfied, (y) a material violation
of any provision of either Stock Option Agreement, or (z) a material violation
of any provision of this Plan except, in every case, as may be required by
applicable law; provided, however, that nothing contained in this Agreement
shall limit the ability of FCFC to exercise its rights under the Stock Option
Agreement.
3.10 Indebtedness. No party shall, or shall permit any of its subsidiaries
------------
to, incur any long-term indebtedness for borrowed money or guarantee any such
long-term indebtedness or issue or sell any long-term debt securities or
warrants or rights to acquire any long-term debt securities of such party or any
of its subsidiaries or guarantee any long-term debt securities of such party or
any of its subsidiaries or guarantee any long-term debt securities of others
other than (i) in replacement for existing or maturing debt, (ii) indebtedness
of any subsidiary of a
-7-
<PAGE>
party to such party or another subsidiary of such party or (iii) in the ordinary
course of business consistent with prior practice.
3.11 Agreements. Agree or commit to do anything prohibited by Sections
----------
3.01 through 3.10.
IV. REPRESENTATIONS AND WARRANTIES.
4.01 Disclosure Letters. Concurrently herewith, FCFC has delivered to
------------------
Southwest and Southweest has delivered to FCFC a letter (as the case may be, its
"Disclosure Letter") setting forth certain items of disclosure with respect to
the representations and warranties set forth below. The mere inclusion of an
item in a Disclosure Letter shall not be deemed an admission by a party that
such item represents a material exception or fact, event or circumstance or that
such item is reasonably likely to result in a Material Adverse Effect (as
defined in Section 8.08).
4.02 Standard. No representation or warranty of FCFC or Southwest
--------
contained in Section 4.03 (other than the representations and warranties
contained in (i) Sections 4.03(A) (with respect to the facts set forth in
Recitals A and B), (C), (U) and (V) (ii), which shall be true and correct
(except for inaccuracies which are de minimis in amount) and (ii) Sections
4.03(D)(I)(i)-(iv), (E), (F), M(l)d-(2), (P), (Q) and (V)(i) which shall be true
and correct in all material respects) shall be deemed untrue or incorrect, and
no party hereto shall be deemed to have breached a representation or warranty,
as a consequence of the existence or absence of any fact, circumstance or event
if such fact, circumstance or event, individually or taken together with all
other facts, circumstances or events inconsistent with any paragraph of Section
4.03 is not reasonably likely to have a Material Adverse Effect.
4.03 Representations and Warranties. Subject to Sections 4.01 and 4.02,
------------------------------
Southwest hereby represents and warrants to FCFC, and FCFC hereby represents and
warrants to Southwest, as follows:
(A) Recitals. In the case of the representations and warranties of
--------
Southwest, the facts set forth in Recitals A, C, D and E of this Plan with
respect to it are true and correct. In the case of the representations and
warranties of FCFC, the facts set forth in Recitals B, C, D and E of this Plan
with respect to it are true and correct.
(B) Organization, Standing, and Authority. It is duly qualified to
-------------------------------------
do business and is in good standing in the states of the United States and
foreign jurisdictions where its ownership or leasing of property or the conduct
of its business requires it to be so qualified. It has in effect all federal,
state, local, and foreign governmental authorizations, licenses and approvals
necessary for it to own or lease its properties and assets and to carry on its
business as it is now conducted. The Articles of Incorporation and by-laws of
it, copies of which were furnished to (i) FCFC, in the case of Southwest, and
(ii) Southwest, in the case of FCFC, are true, correct and complete copies of
such documents as in effect on the date of this Agreement.
-8-
<PAGE>
(C) Shares.
------
(1) The outstanding shares of its capital stock have been duly
authorized and are validly issued and outstanding, fully paid and non-
assessable, and subject to no preemptive rights (and were not issued
in violation of any preemptive rights). Except as Previously Disclosed
in Section 4.03(C) of its Disclosure Letter or, in the case of FCFC,
as may be permitted by Section 3.06, there are no shares of its
capital stock authorized and reserved for issuance, it does not have
any Rights issued or outstanding with respect to its capital stock,
and it does not have any commitment to authorize, issue, sell,
repurchase or redeem any such shares or Rights, except pursuant to
this Plan and the relevant Stock Option Agreement. Between June 30,
1998 and the date of this Plan, it has issued no shares of its capital
stock or Rights except pursuant to commitments Previously Disclosed in
Section 4.03(C) of its Disclosure Letter.
(2) In the case of the representations and warranties of FCFC,
the shares of FCFC Common Stock to be issued in exchange for shares of
Southwest Common Stock in the Merger, when issued in accordance with
the terms of this Plan will be duly authorized, validly issued, fully
paid and non-assessable.
(D) Subsidiaries.
------------
(1) (i) It has Previously Disclosed in Section 4.03(D) of its
Disclosure Letter a list of all its subsidiaries as of the date of
this Plan together with the state or other jurisdiction of
incorporation for each such subsidiary and the percentage of the
issued and outstanding voting securities owned by it, (ii) no equity
securities of any of its significant subsidiaries (as defined in
Section 8.08) are or may become required to be issued (other than to
it or a subsidiary of it) by reason of any Rights, (iii) it owns 100%
of the issued and outstanding voting securities of each significant
subsidiary (except for directors' qualifying shares, if any), (iv)
there are no contracts, commitments, understandings or arrangements by
which any of its significant subsidiaries is or may be bound to sell
or otherwise transfer any shares of the capital stock of any such
significant subsidiary (other than to it or a subsidiary of it), (v)
there are no contracts, commitments, understandings or arrangements
relating to its rights to vote or to dispose of shares of any
significant subsidiary (other than to it or a subsidiary of it), and
(vi) all of the shares of capital stock of each such significant
subsidiary held by it or its subsidiaries are fully paid and (except
pursuant to 12 U.S.C. Section 55 or equivalent state statutes in the
case of banking subsidiaries) non-assessable and are owned by it or
its subsidiaries free and clear of any charge, mortgage, pledge,
security interest, restriction, claim, lien or encumbrance ("Liens").
(2) Except as Previously Disclosed in Section 4.03(D) of its
Disclosure Letter, it does not own (other than Trust Account shares
and DPC
-9-
<PAGE>
shares) beneficially, directly or indirectly, any shares of any equity
or similar interests of any person, or any interest in a partnership
or joint venture of any kind.
(3) Each of its significant subsidiaries has been duly organized
and is validly existing in good standing under the laws of the
jurisdiction in which it is incorporated or organized, is duly
qualified to do business and in good standing in the jurisdictions
where its ownership or leasing of property or the conduct of its
business requires it to be so qualified, and has in effect all
federal, state, local and foreign governmental authorizations,
licenses and approvals necessary for it to own or lease its properties
and assets and to carry out its business as it is now conducted.
(E) Corporate Power. It and each of its significant subsidiaries has
---------------
the corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and it has the corporate
power and authority to execute, deliver and perform its obligations under this
Plan and the Stock Option Agreement.
(F) Corporate Authority. Subject, in the case of this Plan, to
-------------------
receipt of the requisite approval of its shareholders referred to in Section
6.01, execution and delivery of this Plan and the Stock Option Agreement, and
the consummation of the transactions contemplated hereby and thereby have been
authorized by all necessary corporate action on its part, and this Plan and, as
to Southwest, the Stock Option Agreement have been duly executed and delivered
by it, and each is a valid and binding agreement of it, enforceable in
accordance with its terms (except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of
general applicability (relating to or affecting creditors rights or by general
equity principles).
(G) No Defaults. Except as Previously Disclosed in Section 4.03(G)
-----------
of its Disclosure Letter, subject to receipt of the Regulatory Approvals, and
expiration of the waiting periods, referred to in Section 6.02 and the required
filings under federal and state securities laws, the execution, delivery and
performance of this Plan and the Stock Option Agreement and the completion of
the transactions contemplated hereby and thereby by it, do not and will not (i)
constitute a breach or violation of, or a default under, any law, rule or
regulation or any judgment, decree, order, governmental permit or license, or
agreement, indenture or instrument of it or of any of its significant
subsidiaries or to which it or any of its significant subsidiaries or properties
is subject or bound, (ii) constitute a breach or violation of, or a default
under, its Articles of Incorporation or by-laws, or (iii) require any consent or
approval under any such law, rule, regulation, judgment, decree, order,
governmental permit or license agreement, indenture or instrument.
(H) Financial Reports and SEC Documents. Its Annual Report on Form
-----------------------------------
10-K for the fiscal year ended December 31, 1997, and all other reports,
registration statements, definitive proxy statements or information statements
filed or to be filed by it or any of its subsidiaries subsequent to December 31,
1997 under the Securities Act of 1933, as amended (together with the rules and
regulations thereunder, the "Securities Act"), or under Sections
-10-
<PAGE>
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(together with the rules and regulations thereunder, the "Exchange Act"), in the
form filed, or to be filed (collectively, its "SEC Documents"), with the
Securities and Exchange Commission (the "SEC") (i) complied or will comply as of
the date of filing thereof in all material respects as to form with the
applicable requirements under the Exchange Act and (ii) did not and will not
contain as of the date of filing thereof any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading; and each of the balance sheets in or incorporated by
reference into any such SEC Document (including the related notes and schedules
thereto) fairly presents and will fairly present the financial position of the
entity or entities to which it relates as of its date and each of the statements
of income and changes in shareholders' equity and cash flows or equivalent
statements in such report and documents (including any related notes and
schedules thereto) fairly presents and will fairly present the results of
operations, changes in shareholders' equity and changes in cash flows, as the
case may be, of the entity or entities to which it relates for the periods set
forth therein, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except in each case
as may be noted therein, subject to normal and recurring year-end audit
adjustments in the case of unaudited statements. All material agreements,
contracts and other documents required to be filed by it as exhibits to any SEC
Document have been so filed.
(I) Litigation; Regulatory Action. Except as Previously
-----------------------------
Disclosed in Section 4.03(I) of its Disclosure Letter:
(1) no material litigation or proceeding before any court
or governmental agency is pending against it or any of its
subsidiaries and, to the best of its knowledge, no such
litigation, proceeding or controversy has been threatened;
(2) neither it nor any of its subsidiaries or properties is
a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a
commitment letter or similar submission to, or has adopted any
board resolution at the request of, any federal or state
governmental agency or authority charged with the supervision or
regulation of financial institutions or their holding companies
or the issuance of securities or engaged in the insurance of
deposits (including, without limitation, the Office of the
Comptroller of the Currency, the Board of Governors of the
Federal Reserve System and the Federal Deposit Insurance
Corporation) or the supervision or regulation of it or any of its
subsidiaries (collectively, the "Regulatory Authorities"); and
(3) neither it nor any of its subsidiaries has been advised
by any Regulatory Authority that such Regulatory Authority is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, commitment letter or
similar submission or any such resolutions.
-11-
<PAGE>
(J) Compliance with Laws. Except as Previously Disclosed in
--------------------
4.03(J) of its Disclosure Letter, it and each of its subsidiaries:
(1) is in compliance, in the conduct of its business, with
all applicable federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees
applicable thereto or to the employees conducting such
businesses, including, without limitation, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment
Act, the Home Mortgage Disclosure Act and all other applicable
fair lending laws and other laws relating to discriminatory
business practices;
(2) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Regulatory Authorities that are required
in order to permit them to conduct their businesses substantially
as presently conducted; all such permits, licenses, certificates
of authority, orders and approvals are in full force and effect
and, to the best of its knowledge, no suspension or cancellation
of any of them is threatened; and
(3) has received, since December 31, 1997, no notification
or communication from any Regulatory Authority (i) asserting that
it or any of its subsidiaries is not in compliance with any of
the statutes, regulations, or ordinances which such Regulatory
Authority enforces or (ii) threatening to revoke any license,
franchise, permit, or governmental authorization or (iii)
threatening or contemplating revocation or limitation of, or
which would have the effect of revoking or limiting, federal
deposit insurance (nor, to its knowledge, do any grounds for any
of the foregoing exist).
(K) Defaults; Properties.
--------------------
(1) Except as Previously Disclosed in Section 4.03(K) of
its Disclosure Letter, neither it nor any of its subsidiaries is
in default under any contract, agreement, commitment arrangement,
lease, insurance policy, or other instrument to which it is a
party, by which its respective assets, business, or operations
may be bound or affected, or under which it or its respective
assets, business, or operations receives benefits, and there has
not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default.
(2) Except as disclosed or reserved against in its SEC
Documents, it and its subsidiaries have good and marketable
title, free and clear of all Liens (other than Liens for current
taxes not yet delinquent or pledges to secure deposits) to all of
the properties and assets, tangible or intangible, reflected in
its SEC Documents as being owned by it or its subsidiaries as of
the dates thereof. To its knowledge, all buildings and all
fixtures, equipment and other property and assets are held under
valid leases or subleases by it or its subsidiaries enforceable
-12-
<PAGE>
in accordance with their respective terms (except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general
applicability affecting creditors' rights or by general equity
principles).
(L) No Brokers. Except as set forth in Section 4.03(L) of its
----------
Disclosure Letter, all negotiations relative to this Plan and the transactions
contemplated hereby have been carried on by it directly with the other party
hereto and no action has been taken by it that would give rise to any valid
claim against the other party hereto for a brokerage commission, finder's fee or
other like payment.
(M) Employee Benefit Plans.
----------------------
(1) Section 4.03(M) of its Disclosure Letter contains a
complete list of all bonus, vacation, deferred compensation,
pension, retirement, profit-sharing, thrift savings, employee
stock ownership, stock bonus, stock purchase, restricted stock
and stock option plans, all employment or severance contracts,
all medical, dental, disability, health and life insurance plans,
all other employee benefit and fringe benefit plans, contracts or
arrangements and any applicable "change of control" or similar
provisions in any plan, contract or arrangement maintained or
contributed to by it or any of its subsidiaries for the benefit
of officers, former officers, employees, former employees,
directors, former directors, or the beneficiaries of any of the
foregoing ("Compensation and Benefit Plans").
(2) True and complete copies of its Compensation and
Benefit Plans, including, but not limited to, any trust
instruments and/or insurance contracts, if any, forming a part
thereof, and all amendments thereto have been supplied to the
other party.
(3) Each of its Compensation and Benefit Plans has been
administered in compliance with the terms thereof. All "employee
benefit plans" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
other than "multiemployer plans" within the meaning of Section
3(37) of ERISA ("Multiemployer Plans"), covering employees or
former employees of it and its subsidiaries (its "Plans"), to the
extent subject to ERISA, are in compliance in all material
respects with ERISA, the Code, the Age Discrimination in
Employment Act and other applicable laws. Each Plan of it or its
subsidiaries which is an "employee pension benefit plan" within
the meaning of Section 3(2) of ERISA ("Pension Plan") and which
is intended to be qualified under Section 401(a) of the Code has
received (or has applied for) a favorable determination letter
from the Internal Revenue Service, and it is not aware of any
circumstances reasonably likely to result in the revocation or
denial of any such favorable determination letter. Except as
Previously Disclosed in Section 4.03(M) of its Disclosure Letter,
there is no pending or, to its knowledge, threatened litigation
or governmental audit,
-13-
<PAGE>
examination or investigation relating to the Plans. Neither it
nor any of its subsidiaries has engaged in a transaction with
respect to any Plan that, assuming the taxable period of such
transaction expired as of the date hereof, could subject it or
any of its subsidiaries to a tax or penalty imposed by either
Section 4975 of the Code or Section 502(i) of ERISA.
(4) No liability under Subtitle C or D of Title IV of ERISA
has been or is expected to be incurred by it or any of its
subsidiaries with respect to any ongoing, frozen or terminated
"single-employer plan" within the meaning of Section 4001(a)(15)
of ERISA, currently or formerly maintained by any of them, or the
single-employer plan of any entity which is considered one
employer with it under Section 4001(a)(15) of ERISA or Section
414 of the Code (an "ERISA Affiliate"). Neither it nor any of its
subsidiaries presently contributes, to a Multiemployer Plan, nor
have they contributed to such a plan within the past five
calendar years. No notice of a "reportable event," within the
meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed
for any Pension Plan of it or any of its subsidiaries or by any
ERISA Affiliate within the past 12 months.
(5) All contributions, premiums and payments required to be
made under the terms of any Plan of it or any of its subsidiaries
have been made. Neither any Pension Plan of it or any of its
subsidiaries nor any single employer plan of an ERISA Affiliate
of it or any of its subsidiaries has an accumulated funding
deficiency (whether or not waived) within the meaning of Section
412 of the Code or Section 302 of ERISA. Neither it nor any of
its subsidiaries has provided, or is required to provide,
security to any Pension Plan or to any single-employer plan of an
ERISA Affiliate pursuant to Section 401(a)(29) of the Code.
(6) Under each Pension Plan of it or any of its
subsidiaries which is a single-employer plan, as of the last day
of the most recent plan year ended prior to the date hereof, the
actuarially determined present value of all benefit liabilities,
within the meaning of Section 4001(a)(16) of ERISA (as determined
on the basis of the actuarial assumptions contained in the Plan's
most recent actuarial valuation), did not exceed the then current
value of the assets of such Plan, and there has been no adverse
change in the financial condition of such Plan (with respect to
either assets or benefits) since the last day of the most recent
Plan year.
(7) Neither it nor any of its subsidiaries has any
obligations for retiree health and life benefits under any plan,
except as Previously Disclosed in Section 4.03(M) of its
Disclosure Letter.
(8) Each Compensation and Benefit Plan which is a group
health plan provides continuation coverage for separating
employees and "qualified beneficiaries" in accordance with the
provisions of Section 4980B(f) of the Code.
-14-
<PAGE>
Such group health plans are in compliance with Section 1862(b)(1)
of the Social Security Act.
(9) In the case of the representations and warranties of
Southwest, except as Previously Disclosed in Section 4.03(M) of
Southwest's Disclosure Letter, neither the execution and delivery
of this Plan nor the consummation of the transactions
contemplated hereby will (i) result in any payment (including,
without limitation, severance, unemployment compensation, golden
parachute or otherwise) becoming due to any director or any
employee of Southwest or any of its subsidiaries under any
Compensation and Benefit Plan or otherwise from Southwest or any
of its subsidiaries, (ii) increase any benefits otherwise payable
under any Compensation and Benefit Plan or (iii) result in any
acceleration of the time of payment or vesting of any such
benefit.
(N) Labor Matters. Neither it nor any of its subsidiaries is a
-------------
party to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is it
or any of its subsidiaries the subject of a proceeding asserting that it or any
such subsidiary has committed an unfair labor practice (within the meaning of
the National Labor Relations Act) or seeking to compel it or such subsidiary to
bargain with any labor organization as to wages and conditions of employment,
nor is there any strike or other labor dispute involving it or any of its
subsidiaries, pending or, to the best of its knowledge, threatened, nor is it
aware of any activity involving it or any of its subsidiaries' employees seeking
to certify a collective bargaining unit or engaging in any other organization
activity.
(O) Insurance. It and its subsidiaries have taken all requisite
---------
action (including without limitation the making of claims and the giving of
notices) pursuant to its directors' and officers' liability insurance policy or
policies in order to preserve all rights thereunder with respect to all matters
(other than matters arising in connection with this Plan and the transactions
contemplated hereby) that are known to it.
(P) Takeover Laws. It has taken all action required to be taken
-------------
by it in order to opt out or exempt this Plan and the Stock Option Agreement,
and the transactions contemplated hereby and thereby, from, and this Plan and
the Stock Option Agreement and the transactions contemplated hereby and thereby
are exempt from, the requirements of any "business combination," "moratorium,"
"disgorgement," "control share," or other applicable antitakeover laws and
regulations (collectively, "Takeover Laws") of the Commonwealth of Pennsylvania,
including Chapter 25 of the BCL.
(Q) Vote Required. The affirmative vote of the holders of a
-------------
majority of the shares of its Common Stock present and voting at the meeting
referred to in Section 5.02 is the only vote of the holders of any class or
series of its capital stock necessary to approve this Plan and the transactions
contemplated hereby.
-15-
<PAGE>
(R) Environmental Matters. Other than as previously disclosed in
---------------------
Section 4.03(R) of its Disclosure Letter, there are no proceedings, claims,
actions, or investigations of any kind, pending or threatened, in any court,
agency, or other government authority or in any arbitral body, arising under any
Environmental Law; there is no reasonable basis for any such proceeding, claim,
action or investigation; there are no agreements, orders, judgments, decrees,
letters or memoranda by or with any court, regulatory agency or other
governmental authority, or with any other entity, imposing any liability or
obligation; there are and have been no Materials of Environmental Concern or
other conditions at any property (whether or not owned, operated, or otherwise
used by, or the subject of a security interest on behalf of, it or any of its
subsidiaries); and there are no reasonably anticipated future events.
conditions, circumstances, practices, plans, or legal requirements that could
give rise to obligations under any Environmental Law. "Environmental Laws" means
the statutes, rules, regulations, ordinances, codes, orders, decrees, and any
other laws (including common law) of any foreign, federal, state, local, and any
other governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning pollution, or protection of human health-and-
safety or of the environment, as in effect on or prior to the date of this
Agreement. "Materials of Environmental Concern" means any hazardous or toxic
substances, materials, wastes, pollutants, or contaminants, including without
limitation those defined or regulated as such under any Environmental Law, and
any other substance the presence of which may give rise to liability under an
Environmental Law.
(S) Tax Reports. Except as Previously Disclosed in Section
-----------
4.03(S) of its Disclosure Letter: (i) all reports and returns with respect to
Taxes (as defined below) that are required to be filed by or with respect to it
or its subsidiaries, including without limitation consolidated federal income
tax returns of it and its subsidiaries (collectively, the "Tax Returns"), have
been timely filed, or requests for extensions have been timely filed and have
not expired, and such Tax Returns were true, complete and accurate; (ii) all
taxes (which shall include federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, employment, withholding or similar taxes imposed on
the income, properties or operations of it or its subsidiaries, together with
any interest, additions, or penalties with respect thereto and any interest in
respect of such additions or penalties, collectively the "Taxes") shown to be
due on such Tax Returns have been paid in full; (iii) all Taxes due with respect
to completed and settled examinations have been paid in full; (iv) no issues
have been raised by the relevant taxing authority in connection with the
examination of any of such Tax Returns; and (v) no waivers of statutes of
limitations (excluding such statutes that relate to years currently under
examination by the Internal Revenue Service) have been given by or requested
with respect to any Taxes of it or any of its subsidiaries.
(T) Pooling; Reorganization. As of the date hereof, it is aware
-----------------------
of no reason why the Merger will fail to qualify (i) for pooling-of-interests
accounting treatment or (ii) as a reorganization under Section 368(a) of the
Code.
(U) Year 2000. It and each of its subsidiaries has reviewed the
---------
areas within their business and operations which could be adversely affected by
and have developed or are developing a program to address on a timely basis, the
risk that certain computer applications
-16-
<PAGE>
used by it or its subsidiaries may be unable to recognize and perform properly
date sensitive functions involving dates prior to and after December 31, 1999
(the "Year 2000 Problem"). The Year 2000 Problem will not result in a Material
Adverse Effect. It has received from the Regulatory Authorities a current rating
of "satisfactory" in regards to its Year 2000 preparedness.
(V) No Material Adverse Effect. Since December 31, 1997, except
--------------------------
as previously disclosed in its SEC Documents filed with the SEC on or before the
date hereof or in any Section of its Disclosure Letter, (i) it and its
subsidiaries have conducted their respective businesses in the ordinary and
usual course (excluding the incurrence of expenses related to this Plan and the
transactions contemplated hereby) and (ii) no event has occurred or circumstance
arisen that, individually or taken together with all other facts, circumstances
and events (described in any paragraph of Section 4.03 or otherwise), is
reasonably likely to have a Material Adverse Effect with respect to it.
V. COVENANTS.
Southwest hereby covenants to and agrees with FCFC, and FCFC hereby
covenants to and agrees with Southwest, that:
5.01 Best Efforts. Subject to the terms and conditions of this Plan, it
------------
shall use its best efforts in good faith to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
desirable, or advisable under applicable laws, so as to permit consummation of
the Merger as promptly as reasonably practicable and to otherwise enable
consummation of the transactions contemplated hereby and shall cooperate fully
with the other party hereto to that end. Southwest shall, and shall cause its
officers, directors and employees to cooperate with and assist FCFC in the
formulation of a plan or plans of integration of the operation of Southwest with
those of FCFC.
5.02 Shareholder Approvals. Each of them shall take, in accordance with
---------------------
applicable law, National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System ("NMS") rules, in the case of Southwest, and
New York Stock Exchange ("NYSE") rules, in the case of FCFC, and its respective
articles of incorporation and by-laws, all action necessary to convene,
respectively, (i) an appropriate meeting of shareholders of FCFC to consider and
vote upon the approval of this Plan (the "FCFC Meeting"), and (ii) an
appropriate meeting of shareholders of Southwest to consider and vote upon the
approval of this Plan (the "Southwest Meeting"); each of the FCFC Meeting and
the Southwest meeting, a "Meeting"), respectively, as promptly as practicable
after the Registration Statement (as defined in Section 5.03) is declared
effective. The Board of Directors of each of FCFC and Southwest will recommend
approval of such matters, and each of FCFC and Southwest will take all
reasonable lawful action to solicit such approval by its respective
shareholders. Notwithstanding the foregoing, the Board of Directors of Southwest
may determine not to recommend or solicit approval of the Merger or may withdraw
its recommendation in favor of the Merger if it receives a written opinion of
counsel that recommending or soliciting approval of the Merger, or failing to
withdraw its recommendation, would constitute a breach or failure on the part of
the Southwest
-17-
<PAGE>
Board of Directors to perform the duties of their office and any liability for
such breach or failure would not be covered under Southwest's directors' and
officers' liability insurance policy. Southwest and FCFC shall coordinate and
cooperate with respect to the timing of such meetings and shall use their best
efforts to hold such meetings on the same day.
5.03 Registration Statement.
----------------------
(A) Each of FCFC and Southwest agrees to cooperate in the
preparation of a registration statement on Form S-4 (the "Registration
Statement") to be filed by FCFC with the SEC in connection with the issuance of
FCFC Common Stock in the Merger (including the joint proxy statement and
prospectus and other proxy solicitation materials of FCFC and Southwest
constituting a part thereof (the "Joint Proxy Statement")). Each of Southwest
and FCFC agrees to use all reasonable efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as
reasonably practicable after filing thereof. FCFC also agrees to use all
reasonable efforts to obtain all necessary state securities law or "Blue Sky"
permits and approvals required to carry out the transactions contemplated by
this Agreement. Southwest agrees to furnish to FCFC all information concerning
Southwest, its subsidiaries, officers, directors and shareholders as may be
reasonably requested in connection with the foregoing.
(B) Each of Southwest and FCFC agrees, as to itself and its
subsidiaries, that none of the information supplied or to be supplied by it for
inclusion or incorporation by reference in (i) the Registration Statement will,
at the time the Registration Statement and each amendment thereto, if any,
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) the Joint
Proxy Statement and any amendment or supplement thereto will, at the date of
mailing to shareholders and at the times of the FCFC Meeting and the Southwest
Meeting, contain any statement which, in the light of the circumstances under
which such statement is made, is false or misleading with respect to any
material fact, or which will omit to state any material fact necessary in order
to make the statements therein not false or misleading or necessary to correct
any statement in any earlier communication with respect to the solicitation of
any proxy for the same meeting in the Joint Proxy Statement or any amendment or
supplement thereto. Each of Southwest and FCFC agrees that the Joint Proxy
Statement (except, in the case of Southwest, with respect to portions thereof
prepared by FCFC, and except, in the case of FCFC, with respect to portions
thereof prepared by Southwest) will comply as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
SEC thereunder, and the Registration Statement (except, in the case of
Southwest, with respect to portions thereof prepared by FCFC and except, in the
case of FCFC, with respect to portions thereof prepared by Southwest) will
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations of the SEC thereunder.
(C) In the case of FCFC, FCFC will advise Southwest, promptly after
FCFC receives notice thereof, of the time when the Registration Statement has
become effective or any supplement or amendment has been filed, of the issuance
of any stop order or the suspension of the qualification of the FCFC Common
Stock for offering or sale in any jurisdiction, of the
-18-
<PAGE>
initiation or threat of any proceeding for any such purpose, or of any request
by the SEC for the amendment or supplement of the Registration Statement or for
additional information.
5.04 Press Releases. Except as otherwise required by applicable law or the
--------------
rules of the NASDAQ NMS or NYSE, neither FCFC nor Southwest shall, or shall
permit any of its subsidiaries to, issue or cause the publication of any press
release or other public announcement with respect to, or otherwise make any
public statement concerning, the transactions contemplated by this Plan or the
Stock Option Agreement without the consent of the other party, which consent
shall not be unreasonably withheld.
5.05 Access; Information. Upon reasonable notice, it shall afford the
-------------------
other party and its officers, employees, counsel, accountants and other
authorized representatives, access, during normal business hours throughout the
period prior to the Effective Date, to all of its properties, books, contracts,
commitments and records and, during such period, it shall furnish promptly to it
(i) a copy of each material report, schedule and other document filed by it
pursuant to the requirements of federal or state securities or banking laws, and
(ii) all other information concerning the business, properties and personnel of
it as the other may reasonably request; and it will not use any information
obtained pursuant to this Section 5.05 for any purpose unrelated to the
consummation of the transactions contemplated by this Plan and, if this Plan is
terminated, will hold all information and documents obtained pursuant to this
paragraph in confidence (as provided in Section 8.06) unless and until such time
as such information or documents become publicly available other than by reason
of any action or failure to act by it or as it is advised by counsel that any
such information or document is required by law or applicable NASDAQ or NYSE
rules to be disclosed. No investigation by either party of the business and
affairs of another shall affect or be deemed to modify or waive any
representation, warranty, covenant or agreement in this Plan, or the conditions
to either party's obligation to complete the transactions contemplated by this
Plan.
5.06 Acquisition Proposals. Without the prior written consent of the
---------------------
other, neither Southwest nor FCFC shall, and each of them shall cause its
respective subsidiaries not to, and each of them shall direct its officers,
directors and employees and bankers, financial advisors, attorneys, accountants
and other representatives ("Representatives") not to, solicit or encourage
inquiries or proposals with respect to, or engage in any negotiations
concerning, or provide any confidential information to, or have any discussions
with, any person (other than the other party hereto); relating to a Takeover
Proposal, or enter into any agreement with respect to or take any action to
endorse or recommend a Takeover Proposal. As used herein, the term "Takeover
Proposal" shall mean any proposal for a merger, consolidation or other business
combination involving such party or such subsidiary or any of its significant
subsidiaries (other than a merger, consolidation or other business combination
in which such party is the surviving corporation), or any tender or exchange
offer or other plan, proposal or offer by any person (other than the other party
hereto) to acquire in any manner 10% or more of the shares of any class of
voting securities of, or 20% or more of the assets of, such party or any of its
significant subsidiaries. Other than pursuant to the transactions contemplated
by this Plan, each of FCFC and Southwest shall advise the other orally (within
one business day) and in writing (as promptly as practicable), in reasonable
detail, of any such inquiry or proposal which it or any of its subsidiaries or
any
-19-
<PAGE>
Representative may receive and if such inquiry or proposal is in writing, then
FCFC or Southwest, as the case may be, shall deliver to the other a copy of such
inquiry or proposal as promptly as practicable after the receipt thereof.
5.07 Affiliate Agreements.
--------------------
(A) Not later than the 15th day prior to the mailing of the Joint
Proxy Statement, FCFC shall deliver to Southwest, and Southwest shall deliver to
FCFC, a schedule of each person that, to the best of its knowledge, is or is
reasonably likely to be, as of the date of the relevant Meeting, deemed to be an
"affiliate" of it (each, an "Affiliate") as that term is used in Rule 145 under
the Securities Act or SEC Accounting Series Releases 130 and 135.
(B) Each of Southwest and FCFC shall use its respective reasonable
best efforts to cause each person who may be deemed to be an Affiliate of
Southwest or FCFC, as the case may be, to execute and deliver to Southwest and
FCFC on a date at least 40 days prior to the Merger an agreement in the form
attached hereto as Exhibit B or Exhibit C, respectively.
5.08 Takeover Laws. No party shall take any action that would cause the
-------------
transactions contemplated by this Plan and/or the Stock Option Agreement to be
subject to requirements imposed by any Takeover Law and each of them shall take
all necessary steps within its control to exempt (or ensure the continued
exemption of) the transactions contemplated by this Plan and the Stock Option
Agreements from, or if necessary challenge the validity or applicability of, any
applicable Takeover Law, as now or hereafter in effect, including, without
limitation, applicable provisions of Chapter 25 of the BCL, other Takeover Laws
of the Commonwealth of Pennsylvania or Takeover Laws of any other State that
purport to apply to this Plan, the Stock Option Agreements or the transactions
contemplated hereby or thereby.
5.09 Shares Listed. In the case of FCFC, FCFC shall cause to be approved
-------------
for listing, prior to the Effective Date, on the NYSE, upon official notice of
issuance, the shares of FCFC Common Stock to be issued to the holders of
Southwest Common Stock in the Merger.
5.10 Regulatory Applications.
-----------------------
(A) Each party shall promptly (i) prepare and submit applications to
the appropriate Regulatory Authorities and (ii) make all other appropriate
filings to secure all other approvals, consents and rulings, which are necessary
for it to complete the Merger.
(B) Each of FCFC and Southwest agrees to cooperate with the other
and, subject to the terms and conditions set forth in this Plan, use its best
efforts to prepare and file all necessary documentation, to effect all necessary
applications, notices, petitions, filings and other documents, and to obtain all
necessary permits, consents, orders, approvals and authorizations of, or any
exemption by, all third parties and Regulatory Authorities necessary or
advisable to complete the transactions contemplated by this Plan, including
without limitation the regulatory approvals referred to in Section 6.02. Each of
FCFC and Southwest shall have the right to review in advance, and to the extent
practicable each will consult with the other, in each case
-20-
<PAGE>
subject to applicable laws relating to the exchange of information, with respect
to all material written information submitted to, any third party or any
Regulatory Authorities in connection with the transactions contemplated by this
Plan. In exercising the foregoing right, each of the parties hereto agrees to
act reasonably and as promptly as practicable. Each party hereto agrees that it
will consult with the other party hereto with respect to the obtaining of all
material permits, consents, approvals and authorizations of all third parties
and Regulatory Authorities necessary or advisable to complete the transactions
contemplated by this Plan and each party will keep the other party apprised of
the status of material matters relating to completion of the transactions
contemplated hereby.
(C) Each party agrees, upon request, to furnish the other party with
all information concerning itself, its subsidiaries, directors, officers and
shareholders and such other matters as may be reasonably necessary or advisable
in connection with any filing, notice or application made by or on behalf of
such other party or any of its subsidiaries to any Regulatory Authority.
5.11 Indemnification.
---------------
(A) For six years after the Effective Date (except as such time
period is inapplicable as described below), FCFC shall indemnify defend and hold
harmless the present and former directors, officers and employees of Southwest
and its subsidiaries (each, an "Indemnified Party") against all costs or
expenses (including reasonable attorneys fees), judgments, fines, losses,
claims, damages or liabilities (collectively, "Costs") incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of actions or omissions
occurring at or prior to the Effective Time (including, without limitation and
without regard to the six year time limit otherwise imposed by this Section
5.11(A), the transactions contemplated by this Plan) to the fullest extent that
such persons are indemnified under Southwest's articles of incorporation and by-
laws as in effect on the date hereof (and during such period FCFC shall also
advance expenses (including expenses described in Section 5.11(E)) as incurred
to the fullest extent permitted under Southwest's articles of incorporation and
by-laws as in effect on the date hereof, provided that the person to whom
expenses are advanced provides an undertaking to repay such advances if it is
ultimately determined that such person is not entitled to indemnification with
no bond or security to be required). Notwithstanding the foregoing or anything
to the contrary contained elsewhere herein, FCFC's indemnity agreement set forth
above shall be limited to cover claims only to the extent that such claims are
not paid under Southwest's directors' and officers' liability insurance policies
referred to in Section 5.11(B) (or any substitute policy permitted by such
section).
(B) FCFC shall maintain Southwest's existing directors' and officers'
liability insurance policy (or a policy providing comparable coverage amounts on
terms no less favorable, including FCFC's existing policy if it meets the
foregoing standard) covering persons who are currently covered by such insurance
for a period of six years after the Effective Date; provided, however, that in
no event shall FCFC be obligated to expend, in order to maintain or provide
insurance coverage pursuant to this Section 5.11(B), any amount per annum in
excess of 250% of
-21-
<PAGE>
the amount of the annual premiums paid as of the date hereof by Southwest for
such insurance (the "Maximum Amount"). If the amount of the annual premiums
necessary to maintain or procure such insurance coverage exceeds the Maximum
Amount, FCFC shall use all reasonable efforts to maintain the most advantageous
policies of directors' and officers' insurance obtainable for an annual premium
equal to the Maximum Amount.
(C) Any Indemnified Party wishing to claim indemnification under
Section 5.11(A), upon learning of any claim, action, suit, proceeding or
investigation described above, shall promptly notify FCFC thereof; provided that
the failure so to notify shall not affect the obligations of FCFC under Section
5.1l(A) unless and to the extent FCFC has no actual knowledge of such claim,
action, suit, proceeding or investigation and such failure so to notify
materially increases FCFC's liability under such Section 5.11(A).
(D) If FCFC or any of its successors or assigns shall consolidate
with or merge into any other entity and shall not be the continuing or surviving
entity of such consolidation or merger or shall transfer all or substantially
all of its assets to any entity, then and in each case, proper provision shall
be made so that the successors and assigns of FCFC shall assume the obligations
set forth in this Section 5.11.
(E) FCFC shall pay all reasonable costs, including attorneys fees,
that may be incurred by any Indemnified Party in enforcing the indemnity and
other obligations provided for in this Section 5.11. The rights of each
Indemnified Party hereunder shall be in addition to any other rights such
Indemnified Party may have under applicable law.
5.12 Benefit Plans: Employment Contracts.
-----------------------------------
(A) As soon as practicable after the Effective Date, FCFC shall take
all reasonable action so that employees of Southwest and its subsidiaries shall
be generally entitled to participate in the pension, severance, benefit,
vacation, sick pay and similar plans on substantially the same terms and
conditions as employees of FCFC and its subsidiaries, and until such time, the
plans of Southwest shall remain in effect; provided, that no employee of
Southwest who becomes an employee of FCFC and who elects coverage by FCFC's
medical insurance plans shall be excluded from coverage thereunder (for such
employee or any other covered person) on the basis of a preexisting condition
that was not also excluded under Southwest's medical insurance plans, but to the
extent such preexisting condition was excluded from coverage under Southwest's
medical insurance plans, this proviso shall not require coverage for such
preexisting condition. For the purpose of determining eligibility to participate
in such plans, eligibility for benefit forms and subsidies, the vesting of
benefits under such plans and the accrual of benefits under such plans
(including, but not limited to, any pension, severance, 401(k), employee stock
ownership, vacation and sick pay), without duplicating any benefits, FCFC shall
give effect to years of service (and for purposes of qualified and nonqualified
pension plans, prior earnings) with Southwest or its subsidiaries (and to the
extent required by such plan, service with other corporations), as the case may
be, as if they were with FCFC or its subsidiaries. FCFC also shall, and shall
cause its subsidiaries to, continue to honor, to the extent required by law, in
accordance with their terms all employment, severance,
-22-
<PAGE>
consulting and other compensation contracts, disclosed in Section 4.03(M) of the
Southwest Disclosure Letter, between Southwest or any of its subsidiaries and
any current or former director, officer or employee thereof. FCFC will enter
into an agreement with David S. Dahlmann, which shall be generally consistent
with the summary term sheet, attached as Schedule 5.12(a) to FCFC's Disclosure
Letter, and shall supersede the employment agreement currently in effect. The
parties will work in good faith to treat affected employee in an equitable
manner under all supplemental plans, policies or arrangements. To the extent
permitted by law, once the employees of Southwest and its subsidiaries are
covered by the FCFC plans, the parties shall take such action as is required to
eliminate duplicate or overlapping plans and eliminate or freeze the remaining
Southwest plans.
(B) As soon as practicable, but no more than 60 days after the date
hereof, Southwest shall enter into agreements with those individuals listed on
Schedule 5.12(b) to Southwest's Disclosure Letter. Such agreements shall be in a
form acceptable to Southwest in its sole but reasonable discretion. Upon
execution of each such agreement, any prior employment, salary continuation,
termination, severance or other similar agreement between such individual and
Southwest or any of its subsidiaries shall be cancelled and shall be of no
further force or effect.
5.13 Certain Director and Officer Positions.
--------------------------------------
(A) FCFC agrees to fix the size of its Board at 24 members and to
cause five members of Southwest's Board of Directors consisting of David S.
Dahlmann and four other current directors of Southwest selected by FCFC from a
list nominated by Southwest and willing so to serve subject to any applicable
legal restrictions ("Former Southwest Directors") to be elected or appointed as
directors of FCFC at, or as promptly as practicable after, the Effective Time.
David S. Dahlmann shall be appointed to the class of the Board of Directors of
FCFC elected by the shareholders of FCFC at the annual meeting of FCFC
immediately preceding the Effective Date. Three of the Former Southwest
Directors shall be appointed to the class of the Board of Directors of FCFC
elected by the shareholders of FCFC at the annual meeting of FCFC immediately
preceding the annual meeting referenced in the preceding sentence. The remaining
Former Southwest Director shall be appointed to the remaining class of the FCFC
Board of Directors.
(B) FCFC agrees to cause David S. Dahlmann and one additional Former
Southwest Director to be elected or appointed as members of the Executive
Committee of the Board of Directors of FCFC at, or as promptly as practicable
after, the Effective Time. The other Former Southwest Director shall be agreed
upon by the Chief Executive Officers of Southwest and FCFC prior to the
Effective Time. In the event Southwest National Bank of Pennsylvania or any
successor ("Southwest Bank") is merged into First Commonwealth Bank ("FCB"), the
Board of Directors of FCB Bank immediately following the Merger shall consist of
that number of former Southwest Bank directors as bears the same proportion to
the total number of directors of FCB as the number of Former Southwest Directors
bears to the total number of directors of FCFC.
-23-
<PAGE>
5.14 Notification of Certain Matters. Each of Southwest and FCFC shall
-------------------------------
give prompt notice to the other of any fact, event or circumstance known to it
that (i) is reasonably likely, individually or taken together with all other
facts, events and circumstances known to it, to result in any Material Adverse
Effect with respect to it or (ii) would cause or constitute a material breach of
any of its representations, warranties, covenants or agreements contained
herein.
5.15 Dividend Adjustment. After the date of this Agreement, each of FCFC
-------------------
and Southwest shall coordinate with the other the payment of dividends with
respect to the FCFC Common Stock and Southwest Common Stock and the record dates
and payment dates relating thereto, it being the intention of the parties hereto
that holders of FCFC Common Stock and Southwest Common Stock shall not receive
two dividends or fail to receive one dividend, for any single calendar quarter
with respect to their shares of FCFC Common Stock and/or Southwest Common Stock
or any shares of FCFC Common Stock that any such holder receives in exchange for
such shares of Southwest Common Stock in the Merger.
5.16 Post-Merger Operations. It is the present intention of FCFC that the
----------------------
Continuing Corporation maintain a substantial and prominent presence in the
Westmoreland and Allegheny County market and, in connection therewith through
Southwest Bank, shall continue to use and occupy Southwest Bank's existing
branch system and personnel, subject to such changes in business plans as the
Board of Directors of the Continuing Corporation may determine to be in the best
interests of the Continuing Corporation and its shareholders, employees,
customers and the communities it serves. The foregoing notwithstanding, no
employee of Southwest Bank who was an employee both as of the Date of the Plan
and as of the Effective Date, shall be terminated, except for cause, or laid-off
as a direct and proximate result of the Merger. FCFC does, however, reserve the
right to reassign Southwest Bank employees within FCFC and its affiliates.
Further, until at least two years from the Effective Date, Southwest Bank shall
remain a separate wholly-owned subsidiary of FCFC. At the request of FCFC after
the Effective Date, Southwest Bank may convert from a national bank to a banking
organization organized under the laws of the Commonwealth of Pennsylvania. The
existing Board of Directors of Southwest Bank shall remain in place at least for
two years from the Effective Date with the exception that the number of
directors shall be increased by one and the vacancy created shall be filled by
Joseph E. O'Dell or a successor designated by FCFC.
VI. CONDITIONS TO CONSUMMATION OF THE MERGER.
The obligations of each of the parties to consummate the Merger is
conditioned upon the satisfaction at or prior to the Effective Time of each of
the following (except that only Southwest's obligations are conditioned upon
satisfaction of Section 6.06 and only FCFC's obligations are conditioned upon
satisfaction of Sections 6.07 and 6.12):
6.01 Shareholder Vote. Approval of this Plan by the requisite votes of the
----------------
shareholders of Southwest and FCFC:
-24-
<PAGE>
6.02 Regulatory Approvals. Procurement by FCFC and Southwest of all
--------------------
requisite approvals and consents of Regulatory Authorities and the expiration of
the statutory waiting period or periods relating thereto and such approvals and
consents shall not impose any condition or restriction upon the Continuing
Corporation or its subsidiaries which would be reasonably expected either (i) to
have a Material Adverse Effect after the Effective Time on the present or
prospective consolidated financial condition, business or operating results of
the Continuing Corporation, or (ii) to prevent the parties from realizing the
major portion of the economic benefits of the Merger and the transactions
contemplated thereby that they currently anticipate obtaining therefrom;
6.03 Third Party Consents. All consents or approvals of all persons (other
--------------------
than Regulatory Authorities) required for the completion of the Merger shall
have been obtained and shall be in full force and effect, unless the failure to
obtain any such consent or approval is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Southwest or
FCFC;
6.04 No Injunction, Etc. No order, decree or injunction of any court or
------------------
agency of competent jurisdiction shall be in effect, and no law, statute or
regulation shall have been enacted or adopted, that enjoins, prohibits or makes
illegal consummation of the Merger or any of the other transactions contemplated
hereby;
6.05 Pooling Letters. Southwest shall have received from KPMG Peat Marwick
---------------
LLP, independent auditors for Southwest, and FCFC shall have received from
Deliotte & Touche LLP, independent auditors for FCFC, letters, dated the date of
or shortly prior to each of the mailing dates of the Joint Proxy Statement and
the Effective Date, to the effect that the Merger, if consummated in accordance
with this Plan, qualifies for pooling of interests accounting treatment;
6.06 Representations, Warranties and Covenants of FCFC. (i) Each of the
-------------------------------------------------
representations and warranties contained herein of FCFC shall be true and
correct as of the date of this Plan and upon the Effective Date with the same
effect as though all such representations and warranties had been made on the
Effective Date, except for any such representations and warranties made as of a
specified date, which shall be true and correct as of such date in any case
subject to the standards established by Section 4.02, (ii) each and all of the
agreements and covenants of FCFC to be performed and complied with pursuant to
this Plan on or prior to the Effective Date shall been duly performed and
complied with pursuant to this Plan on or prior to the Effective Date shall have
been performed and complied with in all material respects, and (iii) Southwest
shall have received a certificate signed by the Chief Financial Officer of FCFC,
dated the Effective Date, to the effect set forth in clauses (i) and (ii);
6.07 Representations, Warranties and Covenants of Southwest. (i) Each of
------------------------------------------------------
the representations and warranties contained herein of Southwest shall be true
and correct as of the date of this Plan and upon the Effective Date with the
same effect as though all such representations and warranties had been made on
the Effective Date, except for any such representations and warranties made as
of a specified date, which shall be true and correct as of
-25-
<PAGE>
such date, in any case subject to the standards established by Section 4.02,
(ii) each and all of the agreements and covenants of Southwest to be performed
and compiled with pursuant to this Plan on or prior to the Effective Date shall
have been duly performed and complied with in all material respects, and (iii)
FCFC shall have received a certificate signed by the Chief Financial Officer of
Southwest, dated the Effective Date, to the effect set forth in clauses (i) and
(ii);
6.08 Effective Registration Statement. The Registration Statement shall
--------------------------------
have become effective and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC or any other
Regulatory Authority;
6.09 Blue-Sky Permits. FCFC shall have received all state securities laws
----------------
and "blue sky" permits necessary to consummate the Merger;
6.10 Tax Opinion. FCFC and Southwest shall have received an opinion from
-----------
Tucker Arensberg, P.C., to the effect that (i) the Merger constitutes a
reorganization under Section 368 of the Code, and (ii) no gain or loss will be
recognized by shareholders of Southwest who receive shares of FCFC Common Stock,
in exchange for their shares of Southwest Common Stock, except that gain or loss
may be recognized as to cash received in lieu of fractional share interests; in
rendering their opinion, such counsel may require and rely upon representations
and agreements contained in certificates of officers of FCFC, Southwest, and
others; and
6.11 NYSE Listing. The shares of FCFC Common Stock issuable pursuant to
------------
this Plan shall have been approved for listing on the NYSE, subject to official
notice of issuance.
VII. TERMINATION.
7.01 Termination. This Plan may be terminated, and the Merger may be
-----------
abandoned:
(A) Mutual Consent. At any time prior to the Effective Time, by the
--------------
mutual consent of FCFC and Southwest, if the Board of Directors of each so
determines by vote of a majority of the members of its entire Board.
(B) Delay. At any time prior to the Effective Time, by FCFC or
-----
Southwest, if its Board of Directors so determines by vote of a majority of the
members of its entire Board, in the event that the Merger is not consummated by
November 30, 1999, except to the extent that the failure of the Merger then to
be consummated arises out of or results from the knowing action or inaction of
the party seeking to terminate pursuant to this Section 7.01(B).
(C) No Approval. By Southwest or FCFC, if its Board of Directors so
-----------
determines by a vote of a majority of the members of its entire Board, in the
event that (i) the consent of the Board of Governors of the Federal Reserve
System for consummation of the Merger and the other transactions contemplated by
this Plan shall have been denied by final
-26-
<PAGE>
action of the Board and the time for appeal shall have expired, or (ii) any
shareholder approval required by Section 6.01 herein is not obtained at the
Southwest Meeting or the FCFC Meeting.
(D) Possible Adjustment. By Southwest, if its Board of Directors so
-------------------
determines by a vote of a majority of the members of its entire Board, at any
time during the ten-day period commencing two days after the Determination Date,
if the Average Closing Price on the Determination Date of shares of FCFC Common
Stock shall be less than the product of 0.80 and the Starting Price; provided
--------
however, the Board of Directors of Southwest cannot exercise the right of
- -------
termination set forth immediately above if on the Date of Determination (i) the
Index Price on the Date of Determination is equal to or less than the product of
0.80 and the Index Price on the Starting Date and (ii) the Average Closing Price
of the FCFC Common Stock is equal to or greater than the product of 0.70 and the
Starting Price. If Southwest elects to exercise its termination right pursuant
to the immediately preceding sentence, it shall give prompt written notice to
FCFC; provided that such notice of election to terminate may be withdrawn at any
time within the aforementioned ten-day period. During the five-day period
commencing with its receipt of such notice, FCFC shall have the option to elect
to increase the Exchange Ratio to equal a number equal to a quotient (rounded to
the nearest one-thousandth), the numerator of which is the product of 0.80, the
Starting Price and the Exchange Ratio (as then in effect) and the denominator of
which is the Average Closing Price. If FCFC makes an election contemplated by
the preceding sentence, within such five-day period, it shall give prompt
written notice to Southwest of such election and the revised Exchange Ratio,
whereupon no termination shall have occurred pursuant to (this Section 7.01(D)
and this Plan shall remain in accordance with its terms (except as the Exchange
Ratio shall have been so modified), and any references in this Agreement to
"Exchange Ratio" shall thereafter be deemed to refer to the Exchange Ratio as
adjusted pursuant to this Section 7.01(D).
For purposes of this Section 7.01(D), the following terms shall have the
meanings indicated:
"Average Closing Price" means the average daily last sale price of FCFC
Common Stock as reported on the NYSE Composite Transactions reporting system (as
reported in The Wall Street Journal or, if not reported therein, in another
mutually agreed upon authoritative source) for the ten consecutive full trading
days in which such shares are traded on the NYSE ending at the close of trading
on the Determination Date.
"Determination Date" means the date on which the approval of the Federal
Reserve Board required for completion of the Merger shall be received.
"Index Group" shall mean the group of bank holding companies listed in the
SNL Bank Index (banks with assets of $1,000,000,000 to $5,000,000,000), the
common stock of all of which shall be publicly traded since the Starting Date.
"Index Price" on a given date shall mean the market-capitalization-weighted
average (weighted pursuant to the SNL Bank Index (banks with assets of
$1,000,000,000 to $5,000,000,000)) of the closing prices of the companies
composing the Index Group.
-27-
<PAGE>
"Starting Date" means July 14, 1998.
"Starting Price" shall mean the average of the last sales prices of FCFC
Common Stock (as reported in the Wall Street Journal, or if not reported
therein, in another authoritative source) for the Starting Date and the nine
trading dates immediately preceding the Starting Date.
If FCFC declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares or similar
transaction between the Starting Date and the Determination Date, the price for
the common stock of FCFC shall be appropriately adjusted for the purposes of
applying this Section 7.01(D).
(E) Failure to Recommend, Etc. At any time prior to the Southwest
-------------------------
Meeting, by FCFC if the Board of Directors of Southwest shall have failed to
make its recommendation referred to in Section 5.02, withdrawn such
recommendation or modified or changed such FCFC Meeting, by Southwest if the
Board of Directors of FCFC shall have failed to make its recommendation in a
manner adverse to the interests of FCFC; or at any time prior to the
recommendation referred to in Section 5.02, withdrawn such recommendation or
modified or changed such recommendation in a manner adverse to the interests of
Southwest.
7.02 Effect of Termination and Abandonment. In the event of termination
-------------------------------------
of this Plan and the abandonment of the Merger pursuant to this Article VII, no
party to this Plan shall have any liability or further obligation to any other
party hereunder except (i) as set forth in Section 8.01, (ii) that the Stock
Option Agreement shall be governed by its own terms as to termination and (iii)
that termination will not relieve a breaching party from liability for any
willful breach of this Plan giving rise to such termination.
VIII. OTHER MATTERS.
8.01 Survival. All representations, warranties, agreements and covenants
--------
contained in this Plan shall not survive the Effective Time or termination of
this Plan if this Plan is terminated prior to the Effective Time; provided,
however, if the Effective Time occurs, the agreements of the parties in Sections
5.11, 5.12, 5.13, 8.01, 8.04, 8.06 and 8.09 shall survive the Effective Time,
and if this Plan is terminated prior to the Effective Time, the agreements of
the parties in Sections 5.05(B), 7.02, 8.01, 8.04, 8.05, 8.06, 8.07 and 8.09,
shall survive such termination.
8.02 Waiver; Amendment. Prior to the Effective Time, any provision of
-----------------
this Plan may be (i) waived by the party benefited by the provision, or (ii)
amended or modified at any time, by an agreement in writing among the parties
hereto approved by their respective Boards of Directors and executed in the same
manner as this Plan, except that, after the Southwest Meeting the consideration
to be received by the shareholders of Southwest for each share of Southwest
Common Stock shall not thereby be decreased.
8.03 Counterparts. This Plan may be executed in one or more counterparts,
------------
each of which shall be deemed to constitute an original.
-28-
<PAGE>
8.04 Governing Law. This Plan shall be governed by, and interpreted in
-------------
accordance with, the laws of the Commonwealth of Pennsylvania, without regard to
the conflict of law principles thereof.
8.05 Expenses. Each party hereto will bear all expenses incurred by it in
--------
connection with this Plan and the transactions contemplated hereby, except that
printing expenses and SEC registration fees shall be shared equally between
Southwest and FCFC and FCFC shall reimburse Southwest for the fees and expenses
of its counsel.
8.06 Confidentiality. Except as otherwise provided in Section 5.05(B),
---------------
each of the parties hereto and their respective agents, attorneys and
accountants will maintain the confidentiality of all information provided in
connection herewith which has not been publicly disclosed or as it is advised by
counsel that any such information or document is required by law or applicable
NASDAQ or NYSE rule to be disclosed. For purposes of this Agreement, the term
"major portion" of the economic benefits of the Merger means two-thirds of such
economic benefits.
8.07 Notices. All notices, requests and other communications hereunder to
-------
a party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or mailed by registered or certified mail (return
receipt requested) to such party at its address set forth below or such other
address as such party may specify by notice to the parties.
If to FCFC, to:
Joseph E. O'Dell
President and Chief Executive Officer
First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
With copy to:
David R. Tomb, Jr., Esquire
Tomb & Tomb
402 Indiana Theater Building
Indiana, Pennsylvania 15701
-29-
<PAGE>
If to Southwest, to:
David S. Dahlmann
President and Chief Executive Officer
Southwest National Corporation
111 Main Street
Greensburg, Pennsylvania 15601
With a copy to:
Henry S. Pool, Esquire
Tucker Arensberg, P.C.
1500 One PPG Place
Pittsburgh, Pennsylvania 15222
8.08 Definitions. Any term defined anywhere in this Plan shall have the
-----------
meaning ascribed to it for all purposes of this Plan (unless expressly noted to
the contrary). In addition:
(A) the term "Material Adverse Effect" shall mean, with respect to
Southwest or FCFC, respectively, any effect that (i) is material and adverse to
the financial position, results of operations or business of Southwest and its
subsidiaries taken as a whole, or FCFC and its subsidiaries taken as a whole,
respectively, or (ii) materially impairs the ability of Southwest or FCFC,
respectively, to perform its obligations under this Plan or the consummation of
the Merger and the other transactions contemplated by this Plan; provided,
however, that Material Adverse Effect shall not be deemed to include the impact
of actions or omissions of Southwest, or FCFC taken with the prior informed
consent of Southwest or FCFC, as applicable, in contemplation of the
transactions contemplated hereby;
(B) the term "person" shall mean any individual, bank, savings
association, corporation, partnership, association, joint-stock company,
business trust or unincorporated organization;
(C) the term "Previously Disclosed" by a party shall mean information
set forth in its Disclosure Letter or a schedule that is delivered by that party
to the other party prior to the execution of this Plan and specifically
designated as information "Previously Disclosed" pursuant to this Plan;
(D) the term "Rights" means, with respect to any person, securities
or obligations convertible into or exchangeable for, or giving any person any
right to subscribe for or acquire, or any options, calls or commitments relating
to, shares of capital stock of such person; and
(E) the terms "subsidiary" and "significant subsidiary" shall have
the meanings set forth in Rule 1-02 of Regulation S-X of the SEC.
-30-
<PAGE>
8.09 Entire Understanding; No Third Party Beneficiaries. This Plan and the
--------------------------------------------------
Stock Option Agreements together represent the entire understanding of the
parties hereto with reference to the transactions contemplated hereby and
thereby and supersede any and all other oral or written agreements heretofore
made. Except for Sections 5.11, 5.12 and 5.13, nothing in this Plan, expressed
or implied, is intended to confer upon any person, other than the parties hereto
or their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Plan.
8.10 Headings. The headings contained in this Plan are for reference
--------
purposes only and are not part of this Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-31-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
SOUTHWEST NATIONAL CORPORATION
By: /s/ David S. Dalhmann
--------------------------------------------
Name: David S. Dahlmann
Title: President and Chief Executive Officer
FIRST COMMONWEALTH FINANCIAL CORPORATION
By: /s/ Joseph E. O'Dell
----------------------------------------------
Name: Joseph E. O'Dell
Title: President and Chief Executive Officer
-32-
<PAGE>
EXHIBIT 4.1
FIRST COMMONWEALTH FINANCIAL CORPORATION
___________________________________
___________________________________
INDENTURE
Dated as of September 8, 1999
___________________________________
The Chase Manhattan Bank
as Trustee
___________________________________
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of September 8, 1999 between First Commonwealth Financial Corporation and The
Chase Manhattan Bank, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)...................................................6.09
(a)(2) ..................................................6.09
310(a)(3)....................................................N/A
(a)(4)....................................................N/A
310(a)(5).............................................6.10, 6.11
310(b).......................................................N/A
310(c)......................................................6.13
311(a) and (b)...............................................N/A
311(c).............................................4.01, 4.02(a)
312(a)......................................................4.02
312(b) and (c)..............................................4.04
313(a)......................................................4.04
313(b)(1)...................................................4.04
313(b)(2)...................................................4.04
313(c)......................................................4.04
313(d)......................................................4.04
314(a)......................................................4.03
314(b).......................................................N/A
314(c)(1) and (2)...........................................6.07
314(c)(3)....................................................N/A
314(d) ......................................................N/A
314(e)......................................................6.07
314(f) ......................................................N/A
315(a)(c) and (d)...........................................6.01
315(b) .....................................................5.08
315(e) .....................................................5.09
316(a)(1) ..................................................5.07
316(a)(2) ...................................................N/A
316(a) last sentence .......................................2.09
316(b) .....................................................9.02
317(a) .....................................................5.05
317(b) .....................................................6.05
318(a) ....................................................13.08
____________________
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions..................................................................... 1
ARTICLE II.
SECURITIES
Section 2.01. Forms Generally................................................................. 11
Section 2.02. Execution and Authentication.................................................... 11
Section 2.03. Form and Payment................................................................ 12
Section 2.04. Legends......................................................................... 13
Section 2.05. Global Security................................................................. 13
Section 2.06. Interest........................................................................ 14
Section 2.07. Transfer and Exchange........................................................... 15
Section 2.08. Replacement Securities.......................................................... 17
Section 2.09. Treasury Securities............................................................. 17
Section 2.10. Temporary Securities............................................................ 18
Section 2.11. Cancellation.................................................................... 18
Section 2.12. Defaulted Interest.............................................................. 18
Section 2.13. CUSIP Numbers................................................................... 19
ARTICLE III.
PARTICULAR COVENANTS OF THE CORPORATION
Section 3.01. Payment of Principal, Premium and Interest...................................... 19
Section 3.02. Offices for Notices and Payments, etc........................................... 20
Section 3.03. Appointments To Fill Vacancies in Trustee's Office.............................. 20
Section 3.04. Provision as to Paying Agent.................................................... 20
Section 3.05. Certificate to Trustee.......................................................... 21
Section 3.06. Compliance with Consolidation Provisions........................................ 22
Section 3.07. Limitation on Dividends......................................................... 22
Section 3.08. Covenants as to First Commonwealth Capital Trust................................ 23
Section 3.09. Payment of Expenses............................................................. 23
Section 3.10. Payment Upon Resignation or Removal............................................. 24
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE
Section 4.01. Securityholders' Lists.......................................................... 24
Section 4.02. Preservation and Disclosure of Lists............................................ 24
Section 4.03. Reports by Corporation.......................................................... 26
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 4.04. Reports by the Trustee............................................................ 27
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.01. Events of Default................................................................. 27
Section 5.02. Payment of Securities on Default; Suit Therefor................................... 29
Section 5.03. Application of Moneys Collected by Trustee........................................ 31
Section 5.04. Proceedings by Securityholders.................................................... 31
Section 5.05. Proceedings by Trustee............................................................ 32
Section 5.06. Remedies Cumulative and Continuing................................................ 32
Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.... 33
Section 5.08. Notice of Defaults................................................................ 33
Section 5.09. Undertaking To Pay Costs.......................................................... 34
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.01. Duties and Responsibilities of Trustee............................................ 34
Section 6.02. Reliance on Documents, Opinions, etc.............................................. 35
Section 6.03. No Responsibility for Recitals, etc............................................... 36
Section 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May
Own Securities.................................................................... 37
Section 6.05. Moneys to be Held in Trust........................................................ 37
Section 6.06. Compensation and Expenses of Trustee.............................................. 37
Section 6.07. Officers' Certificate as Evidence................................................. 38
Section 6.08. Conflicting Interest of Trustee................................................... 38
Section 6.09. Eligibility of Trustee............................................................ 38
Section 6.10. Resignation or Removal of Trustee................................................. 39
Section 6.11. Acceptance by Successor Trustee................................................... 40
Section 6.12. Succession by Merger, etc......................................................... 41
Section 6.13. Limitation on Rights of Trustee as a Creditor..................................... 41
Section 6.14. Authenticating Agents............................................................. 41
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.01. Action by Securityholders......................................................... 43
Section 7.02. Proof of Execution by Securityholders............................................. 43
Section 7.03. Who Are Deemed Absolute Owners.................................................... 44
Section 7.04. Securities Owned by Corporation Deemed Not Outstanding............................ 44
Section 7.05. Revocation of Consents; Future Holders Bound...................................... 44
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
Section 8.01. Purposes of Meetings............................................................ 45
Section 8.02. Call of Meetings by Trustee..................................................... 45
Section 8.03. Call of Meetings by Corporation or Securityholders.............................. 45
Section 8.04. Qualifications for Voting....................................................... 46
Section 8.05. Regulations..................................................................... 46
Section 8.06. Voting.......................................................................... 47
ARTICLE IX.
AMENDMENTS
Section 9.01. Without Consent of Securityholders.............................................. 48
Section 9.02. With Consent of Securityholders................................................. 49
Section 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures.......... 50
Section 9.04. Notation on Securities.......................................................... 51
Section 9.05. Evidence of Compliance of Supplemental Indenture To Be Furnished Trustee........ 51
ARTICLE X.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. Corporation May Consolidate, etc., on Certain Terms............................. 51
Section 10.02. Successor Corporation To Be Substituted for Corporation......................... 52
Section 10.03. Opinion of Counsel To Be Given Trustee.......................................... 52
ARTICLE XI.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 11.01. Discharge of Indenture.......................................................... 52
Section 11.02. Deposited Moneys and U.S. Government Obligations To Be Held in Trust by
Trustee......................................................................... 53
Section 11.03. Paying Agent to Repay Moneys Held............................................... 54
Section 11.04. Return of Unclaimed Moneys...................................................... 54
Section 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations................ 54
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01. Indenture and Securities Solely Corporate Obligations........................... 56
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
Section 13.01. Successors...................................................................... 56
Section 13.02. Official Acts by Successor Corporation.......................................... 56
Section 13.03. Surrender of Corporation Powers................................................. 56
Section 13.04. Addresses for Notices, etc...................................................... 56
Section 13.05. Governing Law................................................................... 57
Section 13.06. Evidence of Compliance with Conditions Precedent................................ 57
Section 13.07. Business Days................................................................... 57
Section 13.08. Trust Indenture Act to Control.................................................. 58
Section 13.09. Table of Contents, Headings, etc................................................ 58
Section 13.10. Execution in Counterparts....................................................... 58
Section 13.11. Separability.................................................................... 58
Section 13.12. Assignment...................................................................... 58
Section 13.13. Acknowledgement of Rights....................................................... 58
ARTICLE XIV.
REDEMPTION OF SECURITIES
Section 14.01. Special Event Redemption........................................................ 59
Section 14.02. Optional Redemption by Corporation.............................................. 59
Section 14.03. No Sinking Fund................................................................. 60
Section 14.04. Notice of Redemption; Selection of Securities................................... 60
Section 14.05. Payment of Securities Called for Redemption..................................... 61
ARTICLE XV.
SUBORDINATION OF SECURITIES
Section 15.01. Agreement to Subordinate........................................................ 62
Section 15.02. Default on Senior Indebtedness.................................................. 62
Section 15.03. Termination; Dissolution; Bankruptcy............................................ 63
Section 15.04. Subrogation..................................................................... 64
Section 15.05. Trustee to Effectuate Subordination............................................. 65
Section 15.06. Notice by the Corporation....................................................... 65
Section 15.07. Rights of the Trustee; Holders of Senior Indebtedness........................... 66
Section 15.08. Subordination May Not Be Impaired............................................... 66
ARTICLE XVI.
EXTENSION OF INTEREST PAYMENT PERIOD
Section 16.01. Extension of Interest Payment Period............................................ 67
Section 16.02. Notice of Extension............................................................. 68
</TABLE>
iv
<PAGE>
EXHIBIT A................................................................. A-1
Signatures
Acknowledgements
v
<PAGE>
THIS INDENTURE, dated as of September 8, 1999, between First
Commonwealth Financial Corporation, a Pennsylvania corporation (hereinafter
sometimes called the "Corporation"), and The Chase Manhattan Bank, a New York
banking corporation, as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H:
In consideration of the premises, and the purchase of the Securities
by the holders thereof, the Corporation covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to
time of the Securities, as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of this Indenture as originally executed. The
following terms have the meanings given to them in the Declaration: (i)
Clearing Agency; (ii) Delaware Trustee; (iii) Property Trustee; (iv)
Administrative Trustees; (v) Direct Action; (vi) Purchase Agreement; (vii)
Distributions; (viii) Series A Capital Securities; and (ix) Series B Capital
Securities. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with United States
generally accepted accounting principles and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. Headings are
used for convenience of reference only and do not affect interpretation. The
singular includes the plural and vice versa.
"Additional Interest" shall have the meaning set forth in Section
2.06(c).
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published Federal Reserve statistical release designated "H.15 (519)" on the
Federal Reserve's website at www.Federalreserve.gov, or any successor
publication which is published weekly by the Federal Reserve, and which
establishes yields on actively-traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Initial Optional
1
<PAGE>
Redemption Date (if no maturity is within three months before or after the
Initial Optional Redemption Date, yields for the two published maturities most
closely corresponding to the Initial Optional Redemption Date shall be
interpolated, and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date plus, in each case, (a) 2.75% if such
redemption date occurs on or prior to August 31, 2000 and (b) 2.25% in all other
cases.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding the power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Corporation or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any series of Securities,
any day other than a Saturday or a Sunday or a day on which banking institutions
in The City of New York are authorized or required by law or executive order to
close.
"Capital Securities" shall mean undivided beneficial interests in the
assets of First Commonwealth Capital Trust which rank pari passu with the Common
Securities issued by First Commonwealth Capital Trust; provided, however, that
-------- -------
if an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the Capital
Securities shall be paid in full the Distributions and the liquidation,
redemption and other payments to which they are entitled. References to
"Capital Securities" shall include collectively any Series A Capital Securities
and Series B Capital Securities.
2
<PAGE>
"Capital Securities Guarantee" shall mean any guarantee that the
Corporation may enter into with The Chase Manhattan Bank or other Persons that
operates directly or indirectly for the benefit of holders of Capital Securities
of First Commonwealth Capital Trust and shall include a Series A Capital
Securities Guarantee and a Series B Capital Securities Guarantee with respect to
the Series A Capital Securities and the Series B Capital Securities,
respectively.
"Commission" shall mean 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" shall mean undivided beneficial interests in the
assets of First Commonwealth Capital Trust which rank pari passu with Capital
Securities issued by First Commonwealth Capital Trust; provided, however, that
-------- -------
if an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the Capital
Securities shall be paid in full the Distributions and the liquidation,
redemption and other payments to which they are entitled.
"Common Securities Guarantee" shall mean any guarantee that the
Corporation may enter into with any Person or Persons that operates directly or
indirectly for the benefit of holders of Common Securities of First Commonwealth
Capital Trust.
"Common Stock" shall mean the Common Stock, par value $1.00 per share,
of the Corporation or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Corporation by the Chairman, the Chief Executive
Officer, the President, a Vice Chairman, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of the Corporation, and delivered to the
Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity date corresponding to the
Initial Optional Redemption Date that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities with a maturity date corresponding to the
Initial Optional Redemption Date. If no United States Treasury security has a
maturity date which is within three months before or after the Initial Optional
Redemption Date, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Adjusted
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month.
"Comparable Treasury Price" means, with respect to any redemption date
pursuant to Section 14.01, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third
3
<PAGE>
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not published
or does not contain such prices on such Business Day, (A) the average of five
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Compounded Interest" shall have the meaning set forth in Section
16.01.
"Corporation" shall mean First Commonwealth Financial Corporation, a
Pennsylvania corporation, and, subject to the provisions of Article X, shall
include its successors and assigns.
"Coupon Rate" shall have the meaning set forth in Section 2.06(a).
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official appointed under any Bankruptcy Law.
"Declaration" means the Amended and Restated Declaration of Trust of
First Commonwealth Capital Trust, dated as of the Issue Date.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.12.
"Deferred Interest" shall have the meaning set forth in Section 16.01.
"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to Securities of any series for
which the Corporation shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Corporation pursuant to Section 2.05(d).
"Dissolution Event" means the liquidation of First Commonwealth
Capital Trust pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the Trust Securities
issued by First Commonwealth Capital Trust pro rata in accordance with the
--- ----
Declaration.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
4
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Corporation to exchange Series B
Securities for Series A Securities and to exchange a Capital Securities
Guarantee with respect to the Series B Capital Securities for a Capital
Securities Guarantee with respect to the Series A Capital Securities and (ii) by
First Commonwealth Capital Trust to exchange Series B Capital Securities for
Series A Capital Securities.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"First Commonwealth Capital Trust" shall mean First Commonwealth
Capital Trust I, a Delaware business trust created for the purpose of issuing
its undivided beneficial interests in connection with the issuance of Securities
under this Indenture.
"Global Security" means, with respect to the Securities, a Security
executed by the Corporation and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Indebtedness" shall mean (i) every obligation of the Corporation for
money borrowed; (ii) every obligation of the Corporation evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of the Corporation with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of the
Corporation; (iv) every obligation of the Corporation issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Corporation; (vi) all indebtedness of the
Corporation whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products including
interest rate, foreign exchange rate and commodity forward contracts, options
and swaps and similar arrangements; 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, the Corporation has
guaranteed or is responsible or liable, directly or indirectly, as obligor or
otherwise.
"Indebtedness Ranking on a Parity with the Securities" shall mean
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, which specifically by its terms ranks
equally with and not senior to the Securities in the right of payment upon the
happening of the dissolution or winding up or liquidation or reorganization of
the Corporation. The securing of any Indebtedness, otherwise constituting
Indebtedness Ranking on a Parity with the Securities, shall not be deemed to
prevent such Indebtedness from constituting Indebtedness Ranking on a Parity
with the Securities.
5
<PAGE>
"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness, whether outstanding on the date of execution of the Indenture or
thereafter created, assumed or incurred, which specifically by its terms ranks
junior to and not equally with or senior to the Securities (and any other
Indebtedness Ranking on a Parity with the Securities) in right of payment upon
the happening of the dissolution or winding up or liquidation or reorganization
of the Corporation. The securing of any Indebtedness, otherwise constituting
Indebtedness Ranking Junior to the Securities, shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Securities.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Closing Time" shall have the meaning set forth in the
Purchase Agreement.
"Initial Optional Redemption Date" means September 1, 2009.
"Interest Payment Date" shall have the meaning set forth in Section
2.06.
"Issue Date" means September 8, 1999.
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Maturity Date" shall mean September 1, 2029.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Non Book-Entry Capital Securities" shall have the meaning set forth
in Section 2.05.
"Officers" shall mean any of the Chairman, a Vice Chairman, the Chief
Executive Officer, the Chief Operating Officer, the President, a Vice President,
the Chief Financial Officer, the Treasurer, the Secretary or an Assistant
Secretary of the Corporation.
"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Corporation, and who shall be reasonably acceptable to the
Trustee.
"Optional Redemption Price" shall have the meaning set forth in
Section 14.02.
"Other Debentures" means all junior subordinated debentures issued by
the Corporation from time to time and sold to trusts, in each case similar to
the First Commonwealth Capital Trust to be established by the Corporation (if
any).
6
<PAGE>
"Other Guarantees" means all guarantees issued by the Corporation with
respect to capital securities (if any) and issued to other trusts, in each case
similar to the First Commonwealth Capital Trust established by the Corporation
(if any).
The term "Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Corporation) or shall have been
set aside and segregated in trust by the Corporation (if the Corporation shall
act as its own paying agent); provided that, if such Securities, or portions
thereof, are to be redeemed prior to maturity thereof, notice of such redemption
shall have been given as in Article XIV provided or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.08 unless proof satisfactory to the Corporation and the Trustee is
presented that any such Securities are held by bona fide holders in due course.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"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 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Office of the Trustee", or other similar term, shall mean
the office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered.
"Purchase Agreement" shall mean the Purchase Agreement dated as of
September 2, 1999 among the Corporation, First Commonwealth Capital Trust and
the initial purchasers named therein.
"Property Trustee" shall have the same meaning as set forth in the
Declaration.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Corporation.
7
<PAGE>
"Redemption Price" means the Special Event Redemption Price or the
Optional Redemption Price, as the context requires.
"Reference Treasury Dealer" means (i) Bear, Stearns & Co. and its
successors; provided, however, that if the foregoing shall cease to be a primary
-------- -------
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Corporation shall substitute therefor another Primary Treasury
Dealer, and (ii) any other Primary Treasury Dealer selected by the Corporation.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date pursuant to Section 14.01, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. New York City time on the third Business Day preceding such
redemption date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Corporation, the First
Commonwealth Capital Trust and the Initial Purchasers named therein as such
agreement may be amended, modified or supplemented from time to time.
"Regulatory Capital Event" means that the Corporation shall have
received 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 interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the Issue Date, the Capital 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 a
- -------- -------
termination of the First Commonwealth Capital Trust by the Corporation shall not
in and of itself constitute a Regulatory Capital Event.
"Responsible Officer," when used with respect to the Trustee, shall
mean, any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Security" shall mean Securities that bear or are required
to bear the Securities Act legends set forth in Exhibit A hereto.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
8
<PAGE>
"Second Closing Time" shall have the meaning set forth in the Purchase
Agreement.
"Securities" means, collectively, the Series A Securities and the
Series B Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholder," "holder of Securities," or other similar terms,
shall mean any Person in whose name at the time a particular Security is
registered on the register kept by the Corporation or the Trustee for that
purpose in accordance with the terms hereof.
"Security Register" shall mean (i) prior to a Dissolution Event, the
list of holders provided to the Trustee pursuant to Section 4.01, and (ii)
following a Dissolution Event, any security register maintained by a security
registrar for the Securities appointed by the Corporation following the
execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.07(a).
"Senior Indebtedness" shall mean all Indebtedness whether outstanding
on the date of execution of the Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities, and any deferrals, renewals or
extensions of such Senior Indebtedness.
"Series A Securities" means the Corporation's 9.50% Series A Junior
Subordinated Deferrable Interest Debentures due September 1, 2029, as
authenticated and issued under this Indenture.
"Series B Securities" means the Corporation's Series B 9.50% Junior
Subordinated Deferrable Interest Debentures due September 1, 2029, as
authenticated and issued under this Indenture.
"Special Event" means a Tax Event or a Regulatory Capital Event, as
the case may be.
"Special Event Redemption Price" shall mean, with respect to any
redemption of the Securities pursuant to Section 14.01 hereof, an amount in cash
equal to the greater of (i) 100% of the principal amount to be redeemed or (ii)
the sum, as determined by a Quotation Agent, of the present values of the
principal amount and premium payable with respect to an optional redemption
pursuant to Section 14.02 on the Initial Optional Redemption Date, together with
scheduled payments of interest on the Securities from the redemption date to and
including the Initial Optional Redemption Date, discounted to the redemption
date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus, in each case, any accrued and
unpaid interest thereon, including Compounded Interest and Additional Interest,
if any, to the date of such redemption.
9
<PAGE>
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Tax Event" shall mean the receipt by First Commonwealth Capital Trust
and the Corporation of an opinion of independent tax counsel experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the Issue Date, there is more than an insubstantial risk that (i)
First Commonwealth Capital Trust is, or will be within 90 days of the date of
such opinion, subject to United States federal income tax with respect to
income received or accrued on the Securities, (ii) interest payable by the
Corporation on the Securities is not, or within 90 days of the date of such
opinion, will not be, deductible by the Corporation, in whole or in part, for
United States federal income tax purposes, or (iii) First Commonwealth Capital
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.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture, except as provided in Section
9.03.
"Trust Securities" shall mean the Capital Securities and the Common
Securities, collectively.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and
10
<PAGE>
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository receipt.
ARTICLE II.
SECURITIES
Section 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Corporation is subject or customary usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued in
denominations of $1,000 and integral multiples thereof.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Corporation by manual
or facsimile signature in the manner set forth in Exhibit A. If an Officer
whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee. The signature of the
Trustee shall be conclusive evidence that the Security has been authenticated
under this Indenture. The form of Trustee's certificate of authentication to be
borne by the Securities shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at any
time may not exceed, the sum of (a) $25,774,000 aggregate principal amount of
the Securities to be issued on the Initial Closing Time and (b) such aggregate
principal amount (which shall not exceed $10,309,000 aggregate principal amount)
of the Securities, if any, as shall be purchased by First Commonwealth Capital
Trust in accordance with the terms and provisions of the Debenture Subscription
Agreement dated as of September 8, 1999 between the Corporation and First
Commonwealth Capital Trust, except as provided in Sections 2.07, 2.08, 2.10 and
14.05. The series of Securities to be initially issued hereunder shall be the
Series A Securities.
11
<PAGE>
Section 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of,
premium, if any, and interest on the Securities issued in certificated form will
be payable, the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical terms and
provisions at the office or agency of the Corporation maintained for such
purpose under Section 3.02; provided, however, that payment of interest with
-------- -------
respect to the Securities may be made at the option of the Corporation (i) by
check mailed to the holder at such address as shall appear in the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto, provided that proper wire transfer instructions have been
received in writing by the relevant record date; provided, however, that the
-------- -------
Corporation shall withhold from payments of interest on the Securities any
amount that the Corporation determines that it is required to withhold pursuant
to the Pennsylvania Corporate Loans Tax because the Securities are held,
directly or indirectly, by any Person who is subject to such tax, in which case
the Corporation shall promptly notify any Holder of the Securities in respect of
which it has made such a withholding of the amount thereof, by written notice
sent to the address of such Holder as shall appear in the Security Register, and
in the event that the Securities are held by First Commonwealth Capital Trust
and the Corporation determines that the Securities are subject to such a
withholding as a result of the fact that any holder of beneficial interests in
First Commonwealth Capital Trust is a Person subject to such tax, the
Corporation shall promptly notify the Trustee hereunder and the Property Trustee
for First Commonwealth Capital Trust of the identity of each such holder of such
beneficial interests and of the amount withheld in respect thereof.
Notwithstanding the foregoing, so long as the holder of any Securities is the
Property Trustee, the payment of the principal of, premium, if any, and interest
(including Compounded Interest and Additional Interest, if any) on such
Securities held by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee.
Section 2.04. Legends.
(a) Except as permitted by subsection (b) of this Section 2.04 or as
otherwise determined by the Corporation in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth on Exhibit A
hereto.
(b) The Corporation shall issue and the Trustee shall authenticate
Series B Securities in exchange for Series A Securities accepted for exchange in
the Exchange Offer, which Series B Securities shall not bear the legends
required by subsection (a) above, in each case unless the holder of such Series
A Securities is either (A) a broker-dealer who purchased such Series A
Securities directly from the Corporation for resale pursuant to Rule 144A or any
other available exemption under the Securities Act, (B) a Person participating
in the distribution of the Series A Securities or (C) a Person who is an
affiliate (as defined in Rule 144 under the Securities Act) of the Corporation.
12
<PAGE>
Section 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form, the
related Definitive Securities shall be presented to the Trustee (if an
arrangement with the Depositary has been maintained) by the Property Trustee in
exchange for one or more Global Securities (as may be required pursuant to
Section 2.07) in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Securities, to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the instructions of
the Administrative Trustees; the Corporation upon any such presentation shall
execute one or more Global Securities in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in accordance
with this Indenture; and payments on the Securities issued as a Global Security
will be made to the Depositary; and
(ii) if any Capital Securities are held in certificated form, the
related Definitive Securities may be presented to the Trustee by the Property
Trustee and any Capital Security certificate which represents Capital Securities
other than Capital Securities in book-entry form ("Non Book-Entry Capital
Securities") will be deemed to represent beneficial interests in Securities
presented to the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry Capital
Securities until such Capital Security certificates are presented to the
Security Registrar for transfer or reissuance, at which time such Capital
Security certificates will be cancelled and a Security, registered in the name
of the holder of the Capital Security certificate or the transferee of the
holder of such Capital Security certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Security certificate cancelled, will be executed by the Corporation and
delivered to the Trustee for authentication and delivery in accordance with this
Indenture. Upon the issuance of such Securities, Securities with an equivalent
aggregate principal amount that were presented by the Property Trustee to the
Trustee will be deemed to have been cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
--------
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee, in accordance with instructions given by the
Corporation as required by this Section 2.05.
(c) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, another nominee of the Depositary, or to a successor
Depositary selected or approved by the Corporation or to a nominee of such
successor Depositary.
(d) If at any time the Depositary notifies the Corporation that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered
13
<PAGE>
under the Exchange Act, and a successor Depositary is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes
aware of such condition, as the case may be, the Corporation will execute, and
the Trustee, upon written notice from the Corporation, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to exchange the Global
Securities for Definitive Securities. In addition, the Corporation may at any
time determine that the Securities shall no longer be represented by a Global
Security. In the event of such an Event of Default or such a determination, the
Corporation shall execute, and subject to Section 2.07, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such Global
Security. Upon the exchange of the Global Security for such Definitive
Securities, in authorized denominations, the Global Security shall be cancelled
by the Trustee. Such Definitive Securities issued in exchange for the Global
Security shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Definitive Securities to the Depositary for delivery to the Persons in
whose names such Definitive Securities are so registered.
Section 2.06. Interest.
(a) Each Security will bear interest at the rate of 9.50% per annum
(the "Coupon Rate") from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for, from
the Issue Date, until the principal thereof becomes due and payable, and at the
Coupon Rate on any overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, compounded semi-annually, payable (subject to
the provisions of Article XVI) semi-annually in arrears on March 1 and September
1 of each year (each, an "Interest Payment Date") commencing on March 1, 2000,
to the Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the month which
precedes the month in which the relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar month, the actual number of days elapsed in such month. In the event
that any Interest Payment Date falls on a day that is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
(c) During such time as the Property Trustee is the holder of any
Securities, the Corporation shall pay any additional amounts on the Securities
as may be necessary in order that the amount of Distributions then due and
payable by the First Commonwealth Capital Trust
14
<PAGE>
on the outstanding Securities shall not be reduced as a result of any additional
taxes, duties and other governmental charges to which the First Commonwealth
Capital Trust has become subject as a result of a Tax Event ("Additional
Interest").
Section 2.07. Transfer and Exchange.
(a) Transfer Restrictions. The Series A Securities, and those Series
---------------------
B Securities with respect to which any Person described in Section 2.04(b)(A),
(B) or (C) is the beneficial owner, may not be transferred except in compliance
with the legend contained in Exhibit A unless otherwise determined by the
Corporation in accordance with applicable law. Upon any distribution of the
Securities following a Dissolution Event, the Corporation and the Trustee shall
enter into a supplemental indenture pursuant to Section 9.01 to provide for the
transfer restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at such time.
(b) General Provisions Relating to Transfers and Exchanges. Upon
------------------------------------------------------
surrender for registration of transfer of any Security at the office or agency
of the Corporation maintained for the purpose pursuant to Section 3.02, the
Corporation 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 and of a
like aggregate principal amount.
At the option of the holder, Securities of any series may be exchanged
for other Securities of the same series, 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 Corporation shall execute, and the Trustee shall authenticate
and make available for delivery, the Securities which the holder making the
exchange is entitled to receive.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security registrar duly executed, by the
holder thereof or his attorney duly authorized in writing.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Securities or Global Securities surrendered upon such registration of
transfer or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.
The Corporation shall not be required to (i) issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day
15
<PAGE>
of mailing of a notice of redemption or any notice of selection of Securities
for redemption under Article XIV hereof and ending at the close of business on
the day of such mailing; or (ii) register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
(c) Exchange of Series A Securities for Series B Securities. The
-------------------------------------------------------
Series A Securities may be exchanged for Series B Securities pursuant to the
terms of the Exchange Offer. The Trustee shall make the exchange as follows:
The Corporation shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Series A Securities properly tendered in
the Exchange Offer that are represented by a Global Security and
the principal amount of Series A Securities properly tendered in
the Exchange Offer that are represented by Definitive Securities,
the name of each holder of such Definitive Securities, the
principal amount properly tendered in the Exchange Offer by each
such holder and the name and address to which Definitive
Securities for Series B Securities shall be registered and sent
for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Series B Securities have been
registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(o) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) a Global Security for Series B Securities in
aggregate principal amount equal to the aggregate principal amount of Series A
Securities represented by a Global Security indicated in such Officers'
Certificate as having been properly tendered and (B) Definitive Securities
representing Series B Securities registered in the names of, and in the
principal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security for the Series B
Securities is less than the principal amount of the Global Security for the
Series A Securities, the Trustee shall make an endorsement on such Global
Security for Series A Securities indicating a reduction in the principal amount
represented thereby.
The Trustee shall make such Definitive Securities for Series B
Securities available for delivery to the holders thereof as indicated in such
Officers' Certificate.
Section 2.08. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Corporation and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the
16
<PAGE>
Corporation shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements for replacements of Securities are met.
An indemnity bond must be supplied by the holder that is sufficient in the
judgment of the Trustee and the Corporation to protect the Corporation, the
Trustee, any agent thereof or any authenticating agent from any loss that any of
them may suffer if a Security is replaced. The Corporation or the Trustee may
charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Corporation and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities 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
of mutilated, destroyed, lost or stolen Securities.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Corporation or any Affiliate of the Corporation shall be considered as
though not outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that a Responsible Officer of the Trustee actually knows to be
so owned shall be so considered.
Section 2.10. Temporary Securities.
Pending the preparation of Definitive Securities, the Corporation may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Corporation shall cause
Definitive Securities to be prepared without unreasonable delay. The Definitive
Securities shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
officers executing such Definitive Securities. 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 maintained by the Corporation for such purpose pursuant to Section
3.02 hereof, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities, the Corporation shall execute, and the
Trustee shall authenticate and make available for delivery, in exchange therefor
the same aggregate principal amount of Definitive Securities of authorized
denominations. Until so exchanged, the temporary
17
<PAGE>
Securities shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities.
Section 2.11. Cancellation.
The Corporation at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall retain or dispose of cancelled Securities in accordance
with its normal practices unless the Corporation directs them to be returned to
it. The Corporation may not issue new Securities to replace Securities that
have been redeemed or paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the holder on the
relevant regular record date by virtue of having been such holder; and such
Defaulted Interest shall be paid by the Corporation, at its election, as
provided in clause (a) or clause (b) below:
(a) The Corporation may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Corporation shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Corporation shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Corporation of such special record date and, in the name and
at the expense of the Corporation, shall cause notice of the proposed payment of
such Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (b).
(b) The Corporation may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by
18
<PAGE>
such exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.13. CUSIP Numbers.
The Corporation 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 Securityholders; 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 any such redemption shall not be affected
by any defect in or omission of such numbers. The Corporation will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE III.
PARTICULAR COVENANTS OF THE CORPORATION
Section 3.01. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of the holders of
the Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on the Securities at the place,
at the respective times and in the manner provided herein. Except as provided
in Section 2.03, each installment of interest on the Securities may be paid by
mailing checks for such interest payable to the order of the holder of Security
entitled thereto as they appear in the Security Register. The Corporation
further covenants to pay any and all amounts including, without limitation,
Liquidated Damages, if any, on the dates and in the manner required under the
Registration Rights Agreement.
Section 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Corporation
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Securities may be presented for payment, an office or agency
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and an office or agency where notices and
demands to or upon the Corporation in respect of the Securities or of this
Indenture may be served. The Corporation will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the
Corporation in a notice to the Trustee, any such office or agency for all of the
above purposes shall be the Principal Office of the Trustee. In case the
Corporation shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Principal Office of the Trustee.
19
<PAGE>
In addition to any such office or agency, the Corporation may from
time to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
payment, registration of transfer and for exchange in the manner provided in
this Indenture, and the Corporation may from time to time rescind such
designation, as the Corporation may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner relieve the
Corporation of its obligation to maintain any such office or agency in the
Borough of Manhattan, The City of New York, for the purposes above mentioned.
The Corporation will give to the Trustee prompt written notice of any such
designation or rescission thereof.
Section 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 3.04. Provision as to Paying Agent.
(a) If the Corporation shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest
on the Securities (whether such sums have been paid to it by
the Corporation or by any other obligor on the Securities of
such series) in trust for the benefit of the holders of the
Securities;
(2) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Securities) to
make any payment of the principal of and premium or interest
on the Securities when the same shall be due and payable;
and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by it as such
paying agent.
(b) If the Corporation shall act as its own paying agent, it will, on
or before each due date for the payment of the principal of and premium, if any,
or interest on the Securities, set aside, segregate and hold in trust for the
benefit of the holders of the Securities a sum sufficient to pay such principal,
premium or interest so becoming due and will notify the Trustee of any failure
to take such action and of any failure by the Corporation (or by any other
obligor under the Securities) to make any payment of the principal of and
premium, if any, or interest on the Securities when the same shall become due
and payable.
20
<PAGE>
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Securities hereunder, or for any other reason, pay
or cause to be paid to the Trustee all sums held in trust for any such series by
the Trustee or any paying agent hereunder, as required by this Section 3.04,
such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
Section 3.05. Certificate to Trustee.
The Corporation will deliver to the Trustee on or before 120 days
after the end of each fiscal year (which currently ends on December 31),
commencing with the first fiscal year ending after the date hereof, so long as
Securities are outstanding hereunder, an Officers' Certificate, one of the
signers of which shall be the principal executive, principal financial or
principal accounting officer of the Corporation stating that in the course of
the performance by the signers of their duties as officers of the Corporation
they would normally have knowledge of any default by the Corporation in the
performance and observance of any covenants, provisions and conditions, material
terms (without regard to any period of grace or requirement of notice provided
hereunder) contained herein, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof. The Corporation shall promptly notify the
Trustee in writing of any change in its fiscal year end.
Section 3.06. Compliance with Consolidation Provisions.
The Corporation will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article X hereof are complied with.
Section 3.07. Limitation on Dividends.
The Corporation will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock (which includes common
and preferred stock) or (ii) make any payment of principal, interest or premium,
if any, on or repay or repurchase or redeem any debt securities of the
Corporation (including any Other Debentures) that rank pari passu with or junior
in right of payment to the Securities or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of any securities of any Subsidiary
of the Corporation (including Other Guarantees) if such guarantee ranks pari
passu or junior in right of payment to the Securities (other than (a) dividends
or distributions in shares of, or options, warrants or rights to subscribe for
or purchase shares of, Common Stock of the Corporation; (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights
21
<PAGE>
pursuant thereto; (c) payments under the Capital Securities Guarantee; (d) as a
direct result of, and only to the extent required in order to avoid the issuance
of fractional shares of capital stock following a reclassification of the
Corporation's capital stock or the exchange or the conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock; (e) the purchase of fractional interests in shares
of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged;
and (f) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Corporation's benefit plans for its directors, officers
or employees or the Corporation's dividend reinvestment plan) if at such time
(i) an Event of Default shall have occurred and be continuing, (ii) there shall
have occurred any event of which the Corporation has actual knowledge that (a)
is, or with the giving of notice or the lapse of time, or both, would constitute
an Event of Default and (b) in respect of which the Corporation shall not have
taken reasonable steps to cure, (iii) if the Securities are held by the Property
Trustee, the Corporation shall be in default with respect to its payment
obligations under the Capital Securities Guarantee or (iv) the Corporation shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 16.01 and any such extension shall
be continuing.
Section 3.08. Covenants as to First Commonwealth Capital Trust.
In the event Securities are issued to First Commonwealth Capital Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by First Commonwealth Capital Trust, for so long as such Trust Securities remain
outstanding, the Corporation will (i) maintain 100% direct ownership of the
Common Securities of First Commonwealth Capital Trust; provided, however, that
-------- -------
any successor of the Corporation, permitted pursuant to Article X, may succeed
to the Corporation's ownership of such Common Securities, (ii) use its
reasonable efforts to cause First Commonwealth Capital Trust (a) to remain a
business trust, except in connection with a distribution of Securities, the
redemption of all of the Trust Securities of First Commonwealth Capital Trust or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of First Commonwealth Capital Trust, and (b) to otherwise continue
to be treated as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
individual beneficial interest in the Securities.
Section 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of the Securities
to the First Commonwealth Capital Trust and in connection with the sale of the
Trust Securities by the First Commonwealth Capital Trust, the Corporation, in
its capacity as borrower with respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Securities, including commissions to the initial purchasers
payable pursuant to the Purchase Agreement, fees and expenses in connection with
any exchange offer or other action to be taken
22
<PAGE>
pursuant to the Registration Rights Agreement and compensation of the Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the First Commonwealth Capital Trust
(including, but not limited to, costs and expenses relating to the organization
of the First Commonwealth Capital Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the initial purchasers in connection
therewith), the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the First
Commonwealth Capital Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of assets of the First Commonwealth
Capital Trust;
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding taxes
attributable to the First Commonwealth Capital Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the First
Commonwealth Capital Trust; and
(e) pay all other fees, expenses, debts and obligations (other than
payments of principal of, premium, if any, or interest on the Trust Securities)
related to First Commonwealth Capital Trust.
Section 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Trustee, unless otherwise stated, the Corporation shall pay to the Trustee
all amounts accrued and owing to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Corporation shall pay to the Delaware
Trustee or the Property Trustee, as the case may be, all amounts accrued and
owing to the date of such termination, removal or resignation.
23
<PAGE>
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
Section 4.01. Securityholders' Lists.
The Corporation covenants and agrees that it will furnish or cause to
be furnished to the Trustee:
(a) on a semi-annual basis on each regular record date for the
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders as of such record date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation, of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
except that, no such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as Security registrar.
Section 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of the
Securities (1) contained in the most recent list furnished to it as provided in
Section 4.01 or (2) received by it in the capacity of Securities registrar (if
so acting) hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities or with holders of all Securities with respect to their rights under
this Indenture and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of
holders of all Securities, whose names and addresses appear
in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 4.02, and as to
24
<PAGE>
the approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02 a copy of the form of proxy or
other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of
Securities of such series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Securities, by receiving and holding the
same, agrees with the Corporation and the Trustee that neither the Corporation
nor the Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
Section 4.03. Reports by Corporation.
(a) The Corporation covenants and agrees to file with the Trustee,
within 15 days after the date on which the Corporation is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Corporation may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Corporation is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
25
<PAGE>
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Corporation covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents and
reports with respect to compliance by the Corporation with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Corporation covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security Register, within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports required to be filed by
the Corporation pursuant to subsections (a) and (b) of this Section 4.03 as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) 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 or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Securities to
qualify for an exemption under Rule 144A under the Securities Act, the
Corporation shall, upon request, provide the information required by clause
(d)(4) thereunder to each holder of Securities and to each beneficial owner and
prospective purchaser of Securities identified by any holder of Restricted
Securities, unless such information is furnished to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
Section 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders 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, commencing May 15, 2000, deliver to Securityholders a brief report,
dated as of the applicable 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 Securityholders, be filed by the Trustee with each stock exchange, if any,
upon which the Securities are listed, with the Commission and with the
Corporation. The Corporation will promptly notify the Trustee when the
Securities are listed on any stock exchange.
26
<PAGE>
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.01. Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder (whatever the reason for such Event of Default and
whether it shall be voluntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any interest upon any Security or any
Other Debentures when it becomes due and payable, and continuance of such
default for a period of 30 days; provided, however, that a valid extension of an
--------
interest payment period by the Corporation in accordance with the terms hereof
shall not constitute a default in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal of (or
premium, if any, on) any Security or any Other Debentures as and when the same
shall become due and payable either at maturity, upon redemption, by declaration
or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty
of the Corporation in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Corporation by the Trustee or to the Corporation and the Trustee by the holders
of at least 25% in aggregate principal amount of the outstanding Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Corporation in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property, or ordering the winding-up or liquidation of its affairs
and such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Trustee or the
holders of not less than 25% in
27
<PAGE>
aggregate principal amount of the Securities then outstanding may declare the
principal amount of all Securities to be due and payable immediately, by a
notice in writing to the Corporation (and to the Trustee if given by the holders
of the outstanding Securities), and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Corporation shall pay or shall deposit with the Trustee a sum sufficient to
pay (A) all matured installments of interest upon all the Securities and the
principal of and premium, if any, on any and all Securities which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest specified in the Securities to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and (ii) any and all Events of Default under
the Indenture, other than the non-payment of the principal of the Securities
which shall have become due solely by such declaration of acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then, in every
such case, the holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Corporation and to the
Trustee, may rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Corporation, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Corporation, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
Section 5.02. Payment of Securities on Default; Suit Therefor.
The Corporation covenants that (a) in case Default shall be made in
the payment of any installment of interest upon any of the Securities as and
when the same shall become due and payable, and such Default shall have
continued for a period of 30 days, or (b) in case Default shall be made in the
payment of the principal of or premium, if any, on any of the Securities as and
when the same shall have become due and payable, whether at maturity of the
Securities or upon redemption or by declaration or otherwise, then, upon demand
of the Trustee, the Corporation will pay to the Trustee, for the benefit of the
holders of the Securities, the whole amount that then shall have become due and
payable on all such Securities for principal and premium, if any, or interest,
or both, as the case may be, with interest upon the overdue principal
28
<PAGE>
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law and, if the Securities are held by First
Commonwealth Capital Trust or a trustee of such trust, without duplication of
any other amounts paid by First Commonwealth Capital Trust or a trustee in
respect thereof) upon the overdue installments of interest at the rate borne by
the Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or any other obligor on
the Securities and collect in the manner provided by law out of the property of
the Corporation or any other obligor on the Securities wherever situated the
moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Corporation or any other obligor on the Securities
under Title 11, United States Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the
Corporation or such other obligor, or in the case of any other similar judicial
proceedings relative to the Corporation or other obligor upon the Securities, or
to the creditors or property of the Corporation or such other obligor, the
Trustee, irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest owing and unpaid in
respect of the Securities and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to the Corporation
or any other obligor on the Securities, or to the creditors or property of the
Corporation or such other obligor, unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable
29
<PAGE>
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
Section 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to Section 5.02 shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the Securities in respect
of which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee under Section
6.06, including the costs and expenses of collection applicable to the
Securities and reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Corporation
if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of (and premium, if any) and interest on the
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference of priority of any kind, according to the
amounts due on such Securities for principal (and premium, if any) and interest,
respectively; and
Fourth: To the Corporation.
30
<PAGE>
Section 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the
Securities specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Securities then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding, it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every other taker and
holder and the Trustee, that no one or more holders of Securities shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of
(premium, if any) and interest on such Security, on or after the same shall have
become due and payable, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder
and by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Security with every other such taker
and holder and the Trustee, that no one or more holders of Securities shall have
any right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the holders of any
other Securities, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
The Corporation and the Trustee acknowledge that pursuant to the
Declaration, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action with respect to any Event of Default under this Indenture and the
Securities.
Section 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this
31
<PAGE>
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 5.06. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.08, all powers
and remedies given by this Article V to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to the Securities, and no delay or omission
of the Trustee or of any holder of any of the Securities to exercise any right
or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
--------
however, that (subject to the provisions of Section 6.01) the Trustee shall have
- -------
the right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the holders not
taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee, by its board of directors or trustees, executive committee,
or a trust committee of directors or trustees and/or Responsible Officers, shall
determine in good faith that the action or proceedings so directed would involve
the Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Securities, the holders of a majority in aggregate principal
amount of the Securities at the time outstanding may on behalf of the holders of
all of the Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of or premium, if
any, or interest on any of the Securities or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Security affected; provided, however, that if the Securities are
-------- -------
held by the Property Trustee, such waiver or modification to such waiver shall
not be effective until the holders of a majority in aggregate liquidation amount
of Trust Securities shall have consented to such waiver or modification to such
waiver; provided further, that if the consent of the holder of each outstanding
-------- -------
Security is required, such waiver shall not be effective until each
32
<PAGE>
holder of the Trust Securities shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Corporation, the Trustee and the holders of
the Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.07, said default
or Event of Default shall for all purposes of the Securities and this Indenture
be deemed to have been cured and to be not continuing.
Section 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a Default
with respect to the Securities mail to all Securityholders, as the names and
addresses of such holders appear upon the Security register, notice of all
Defaults known to the Trustee, unless such Defaults shall have been cured before
the giving of such notice (the term "Defaults" for the purpose of this Section
5.08 being hereby defined to be the events specified in clauses (a), (b), (c),
(d) and (e) of Section 5.01, not including periods of grace, if any, provided
for therein, and irrespective of the giving of written notice specified in
clause (c) of Section 5.01); and provided that, except in the case of Default in
-------- ----
the payment of the principal of or premium, if any, or interest on any of the
Securities, 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 Securityholders;
and provided further, that in the case of any Default of the character specified
-------- -------
in Section 5.01(c) no such notice to Securityholders shall be given until at
least 60 days after the occurrence thereof but shall be given within 90 days
after such occurrence.
Section 5.09. Undertaking To Pay 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 5.09 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security against the Corporation on or after
the same shall have become due and payable.
33
<PAGE>
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any written certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07, relating to the time, method and
place of conducting any proceeding for any
34
<PAGE>
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, note,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein may be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Corporation;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default (that has not been cured or waived), to exercise such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of a majority in aggregate principal amount of the
35
<PAGE>
outstanding Securities; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care.
Section 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Corporation and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Corporation of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture. The Trustee shall not be
charged with knowledge of any Default or Event of Default under Section 5.01(a)
or (b) relating to Other Debentures unless (i) a Responsible Officer of the
Trustee assigned to its Principal Office shall have actual knowledge thereof or
(ii) the Corporation, any Securityholder or the holder of any Other Debenture
shall have given the Trustee written notice thereof in accordance with Section
13.04.
Section 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
Section 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Corporation. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Corporation, signed by the Chairman of the
Board of Directors, the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Corporation.
36
<PAGE>
Section 6.06. Compensation and Expenses of Trustee.
The Corporation, as borrower, covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Corporation and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Corporation will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Corporation also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith on
the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Corporation under this Section 6.06 to compensate and indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or Section
5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
Section 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
37
<PAGE>
Section 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Corporation shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act, subject to the penultimate paragraph thereof.
Section 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 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 aforesaid supervising or examining
authority, then for the purposes of this Section 6.09 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.
The Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
Section 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice of such resignation to the
Corporation and by mailing notice thereof to the holders of the Securities at
their addresses as they shall appear on the Security register. Upon receiving
such notice of resignation, the Corporation shall promptly appoint a successor
trustee or trustees by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation to the Securityholders, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide holder of a Security for at least six
months may, subject to the provisions of Section 5.04, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
38
<PAGE>
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the
Corporation or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign
after written request therefor by the Corporation or by any
such Securityholder, 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, the Corporation may remove the Trustee
and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.04, any Securityholder 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 and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after such nomination the Corporation objects
thereto or if no successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after such removal, in which case the
Trustee so removed or any Securityholder, upon the terms and conditions and
otherwise as in subsection (a) of this Section 6.10 provided, may petition any
court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
Section 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Corporation and to its predecessor
trustee an instrument
39
<PAGE>
accepting such appointment hereunder, and thereupon the resignation or removal
of the retiring trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Corporation or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Corporation shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Corporation shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security register. If the Corporation fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Corporation.
Section 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Securities or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name
40
<PAGE>
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Corporation with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities issued
upon exchange or transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate and
deliver Securities; provided, that the Trustee shall have no liability to the
--------
Corporation for any acts or omissions of the Authenticating Agent with respect
to the authentication and delivery of Securities. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $50,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Corporation. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Corporation. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible under this Section
6.14, the Trustee may, and upon the request of the Corporation shall, promptly
appoint a successor Authenticating Agent eligible under this Section 6.14, shall
give written notice of such appointment to the Corporation and shall mail notice
of such appointment
41
<PAGE>
to all Securityholders as the names and addresses of such holders appear on the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein.
The Corporation, as borrower, agrees to pay to any Authenticating
Agent from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the written directions of the Trustee.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
If the Corporation shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Corporation may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
action or to revoke any such action, but the Corporation shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether Securityholders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Securities shall be
computed as of the record date; provided, however, that no such authorization,
-------- -------
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
42
<PAGE>
Section 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
Section 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Corporation, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security registrar may deem the Person in whose name such
Security shall be registered upon the Security Register to be, and may treat him
as, the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and (subject to Section 2.06) interest on such Security
and for all other purposes; and neither the Corporation nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Section 7.04. Securities Owned by Corporation Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Corporation or
any other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or any other obligor on the Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided
--------
that for the purposes of determining whether the Trustee shall be protected in
- ----
relying on any such direction, consent or waiver, only Securities which the
Trustee actually knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities and that the pledgee
is not the Corporation or any such other obligor or Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the written advice of
counsel shall be full protection to the Trustee.
43
<PAGE>
Section 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its principal office and upon
proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Security (or so far as concerns the principal amount represented
by any exchanged or substituted Security). Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Security or any Security
issued in exchange or substitution therefor.
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
Section 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Corporation or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of such Securities under
any other provision of this Indenture or under applicable law.
Section 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 8.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the
44
<PAGE>
action proposed to be taken at such meeting, shall be mailed to holders of
Securities at their addresses as they shall appear on the Securities Register.
Such notice shall be mailed not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
Section 8.03. Call of Meetings by Corporation or Securityholders.
In case at any time the Corporation pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate principal amount
of the Securities then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Corporation or such Securityholders may determine the time and
the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 8.01, by mailing notice thereof
as provided in Section 8.02.
Section 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a holder of one or more Securities or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Corporation and its counsel.
Section 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Securityholders as provided in Section 8.03, in which case the
Corporation or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the holders of a
majority in principal amount of the outstanding Securities present at the
meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; provided, however,
-------- -------
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as
45
<PAGE>
the Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
The Persons entitled to vote a majority in principal amount of the
outstanding Securities shall constitute a quorum for a meeting of Holders of
Securities; provided, however, that if any action is to be taken at such meeting
with respect to a consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the holders of not less than a
specified percentage in principal amount of the outstanding Securities, the
Persons holding or representing such specified percentage in principal amount of
the outstanding Securities will constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of holders of Securities, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
outstanding Securities which shall constitute a quorum.
Except as limited by the first proviso to the first paragraph of
Section 9.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding Securities; provided, however, that, except as limited by the first
-----------------
proviso to the first paragraph of Section 9.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action which this Indenture expressly provides may be given by the holders of
not less than a specified percentage in principal amount of the outstanding
Securities may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the holders of not less than such specified percentage in principal amount of
the outstanding Securities.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities whether or not present or represented at the meeting.
Section 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented
46
<PAGE>
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. The holders of
the Series A Capital Securities and the Series B Capital Securities shall vote
for all purposes as a single class.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX.
AMENDMENTS
Section 9.01. Without Consent of Securityholders.
The Corporation and the Trustee may from time to time and at any time
amend the Indenture, without the consent of the Securityholders, for one or more
of the following purposes:
(a) to evidence the succession of another Person to the Corporation,
or successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Corporation pursuant to Article X
hereof;
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the Securityholders as the
Board of Directors and the Trustee shall consider to be for the protection of
the Securityholders, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions or
conditions a Default or an Event of Default permitting the enforcement of all or
any of the remedies provided in this Indenture as herein set forth; provided,
--------
however, that in respect of any such additional covenant, restriction or
- -------
condition such amendment may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of
47
<PAGE>
such Securities with the Securities issued hereunder in fully registered form
and to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not materially
-------- ----
adversely affect the interests of the holders of the Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities;
(f) to make provision for transfer procedures, certification, book-
entry provisions, the form of restricted securities legends, if any, to be
placed on Securities, minimum denominations and all other matters required
pursuant to Section 2.07 or otherwise necessary, desirable or appropriate in
connection with the issuance of Securities to holders of Capital Securities in
the event of a distribution of Securities by First Commonwealth Capital Trust
following a Dissolution Event;
(g) to qualify or maintain qualification of this Indenture under the
Trust Indenture Act;
(h) to enable the Corporation and First Commonwealth Capital Trust to
conduct an Exchange Offer as contemplated by the Registration Rights Agreement;
provided that any such amendment shall not materially adversely affect the
- -------- ----
interests of the holders of the Securities; or
(i) to make any change that does not adversely affect the rights of
any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Corporation in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.01 may be executed by the Corporation and the Trustee without the
consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
Section 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding, the Corporation, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time
48
<PAGE>
amend the Indenture 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 the Securities; provided,
--------
however, that no such amendment shall without the consent of the holders of each
- -------
Security then outstanding and affected thereby (i) extend the Maturity Date of
any Security, or reduce the rate or extend the time of payment of interest
thereon (except as contemplated by Article XVI), or reduce the principal amount
thereof, or reduce any amount payable on redemption thereof, or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Securities, or impair or affect the
right of any Securityholder to institute suit for payment thereof, or (ii)
reduce the aforesaid percentage of Securities the holders of which are required
to consent to any such amendment to the Indenture, provided, however, that if
-------- -------
the Securities are held by First Commonwealth Capital Trust, such amendment
shall not be effective until the holders of a majority in liquidation amount of
Trust Securities shall have consented to such amendment; provided, further, that
-------- -------
if the consent of the holder of each outstanding Security is required, such
amendment shall not be effective until each holder of the Trust Securities shall
have consented to such amendment.
Upon the request of the Corporation accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Corporation in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Corporation, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Corporation and the
49
<PAGE>
holders of Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the provisions of this
Article IX may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation or the Trustee
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Corporation, authenticated by the Trustee or the Authenticating Agent and
delivered in exchange for the Securities then outstanding.
Section 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
The Trustee may receive an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. Corporation May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person (whether or not affiliated with the Corporation, as the case may be), or
successive consolidations or mergers in which the Corporation, or its successor
or successors, as the case may be, shall be a party or parties, or shall prevent
any sale, conveyance, transfer or lease of the property of the Corporation, or
its successor or successors, as the case may be, as an entirety, or
substantially as an entirety, to any other Person (whether or not affiliated
with the Corporation, or its successor or successors, as the case may be)
authorized to acquire and operate the same; provided, that (a) the Corporation
--------
is the surviving Person, or the Person formed by or surviving any such
consolidation or merger (if other than the Corporation) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) upon any such
50
<PAGE>
consolidation, merger, sale, conveyance, transfer or lease, the due and punctual
payment of the principal of (and premium, if any) and interest on the Securities
according to their tenor and the due and punctual performance and observance of
all the covenants and conditions of this Indenture to be kept or performed by
the Corporation shall be expressly assumed, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
Person formed by such consolidation, or into which the Corporation, shall have
been merged, or by the Person which shall have acquired such property, as the
case may be, (c) after giving effect to such consolidation, merger, sale,
conveyance, transfer or lease, no Default or Event of Default shall have
occurred and be continuing and (d) such consolidation, merger, sale, conveyance,
transfer or lease does not cause the Securities to be downgraded by a nationally
recognized statistical rating organization.
Section 10.02. Successor Corporation To Be Substituted for Corporation.
In case of any such consolidation, merger, conveyance or transfer and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Corporation, such successor Person shall succeed to
and be substituted for the Corporation, with the same effect as if it had been
named herein as the party of the first part, and the Corporation thereupon shall
be relieved of any further liability or obligation hereunder or upon the
Securities. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of First Commonwealth Financial
Corporation, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Corporation and delivered to the Trustee or
the Authenticating Agent; and, upon the order of such successor Person instead
of the Corporation and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee or the Authenticating Agent shall
authenticate and deliver any Securities which previously shall have been signed
and delivered by the officers of the Corporation to the Trustee or the
Authenticating Agent for authentication, and any Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. 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 Indentures had been issued at the date of the
execution hereof.
Section 10.03. Opinion of Counsel To Be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
shall be furnished an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or lease, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
51
<PAGE>
ARTICLE XI.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 11.01. Discharge of Indenture.
When (a) the Corporation shall deliver to the Trustee for cancellation
all Securities theretofore authenticated (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Corporation shall deposit with the Trustee, in trust, funds
sufficient to pay on the Maturity Date or upon redemption all of the Securities
(other than any Securities which shall have been destroyed, lost or stolen and
which shall have been replaced as provided in Section 2.08) not theretofore
cancelled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to the Maturity Date or
redemption date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of or premium, if any, or interest on the
Securities (1) theretofore repaid to the Corporation in accordance with the
provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Corporation shall also pay or cause to be paid all other sums payable
hereunder by the Corporation, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.02, 2.07, 2.08, 3.01, 3.02, 3.04,
6.06, 6.10 and 11.04 hereof, which shall survive until such Securities shall
mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and
the Trustee, on demand of the Corporation accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Corporation, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Corporation, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities.
Section 11.02. Deposited Moneys and U.S. Government Obligations To Be Held
in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Corporation if acting as its own
paying agent), to the holders of the particular Securities for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
The Corporation shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to
52
<PAGE>
Section 11.05 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
holders of outstanding Securities.
Section 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
written demand of the Corporation, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of or premium, if any, or interest on Securities
and not applied but remaining unclaimed by the holders of Securities for two
years after the date upon which the principal of or premium, if any, or interest
on such Securities, as the case may be, shall have become due and payable, shall
be repaid to the Corporation by the Trustee or such paying agent on Company
Request; and the holder of any of the Securities shall thereafter look only to
the Corporation for any payment which such holder may be entitled to collect and
all liability of the Trustee or such paying agent with respect to such moneys
shall thereupon cease.
Section 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Corporation shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Securities on the 91st day after
the conditions set forth below have been satisfied:
(1) The Corporation shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance
Agent (as defined below) as trust funds in trust,
specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Securities (i) money
in an amount, or (ii) U.S. Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money
in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (ii) and (iii))
of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee and the Defeasance Agent, if any,
to pay and discharge each installment of principal of and
interest and premium, if any, on the outstanding Securities
on the dates such installments of principal, interest or
premium are due;
(2) if the Securities are then listed on any national securities
exchange, the Corporation shall have delivered to the
Trustee and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that
53
<PAGE>
the exercise of the option under this Section 11.05 would
not cause such Securities to be delisted from such exchange;
(3) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date
of such deposit; and
(4) the Corporation shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the
effect that holders of the Securities will not recognize
income, gain or loss for United States federal income tax
purposes as a result of the exercise of the option under
this Section 11.05 and will be subject to United States
federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such
option had not been exercised, and such opinion shall be
based on a statute so providing or be accompanied by a
private letter ruling to that effect received from the
United States Internal Revenue Service or a revenue ruling
pertaining to a comparable form of transaction to that
effect published by the United States Internal Revenue
Service.
"Discharged" means that the Corporation shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Corporation,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest and premium, if any, on the
Securities when such payments are due; (B) the Corporation's obligations with
respect to the Securities under Sections 2.02, 2.07, 2.08, 3.02, 3.04, 6.10 and
11.04; and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act under this Article. In the
event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
(1) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting
forth such Defeasance Agent's rights and responsibilities;
and
(2) The Defeasance Agent shall provide verification to the
Trustee acknowledging receipt of sufficient money and/or U.
S. Government Obligations to meet the applicable conditions
set forth in this Section 11.05.
54
<PAGE>
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Corporation in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation or of any successor Person to the Corporation, either
directly or through the Corporation or any successor Person to the Corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
Section 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Corporation shall bind its successors and assigns
whether so expressed or not.
Section 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Corporation shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the time
be the lawful sole successor of the Corporation.
Section 13.03. Surrender of Corporation Powers.
The Corporation by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Corporation, and thereupon such
power so surrendered shall terminate both as to the Corporation, as the case may
be, and as to any successor Person.
Section 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities on the Corporation may be given or served by being deposited postage
prepaid by registered or certified mail in a
55
<PAGE>
post office letter box addressed (until another address is filed by the
Corporation with the Trustee for the purpose) to the Corporation, 22 North Sixth
Street, P.O. Box 400, Indiana, Pennsylvania 15701, Attention: Chief Financial
Officer. Any notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the office of the Trustee, 450 West
33/rd/ Street, 15th Floor, New York, NY 10001, Attention: Corporate Trust
Administration Department (unless another address is provided by the Trustee to
the Corporation for the purpose).
Any notice or communication to a Holder shall be mailed by first class
mail to his or her address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
Section 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of laws principles thereof.
Section 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Corporation to the Trustee to
take any action under any of the provisions of this Indenture, the Corporation
shall furnish to the Trustee an Officers' Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except pursuant to Section 3.05) shall include
(1) a statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Section 13.07. Business Days.
In any case where the date of payment of principal of or premium, if
any, or interest on the Securities will not be a Business Day, the payment of
such principal of or premium, if any, or interest on the Securities need not be
made on such date but may be made on the next succeeding Business Day, with the
same force and effect as if made on the date of
56
<PAGE>
payment and no interest shall accrue in respect of such payment for the period
from and after such date.
Section 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such imposed duties shall
control.
Section 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Securities,
but this Indenture and the Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 13.12. Assignment.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Corporation, provided that, in the event of any
--------
such assignment, the Corporation will remain primarily liable for all its
obligations. Subject to the foregoing, the Indenture is binding upon and inures
to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
Section 13.13. Acknowledgement of Rights.
The Corporation acknowledges that, with respect to any Securities held
by First Commonwealth Capital Trust or a trustee of such trust, if the Property
Trustee of such Trust fails to enforce its rights under this Indenture as the
holder of the Securities held as the assets of First Commonwealth Capital Trust
any holder of Capital Securities may institute legal proceedings directly
against the Corporation to enforce such Property Trustee's rights under this
Indenture without first instituting any legal proceedings against such Property
Trustee or any other Person.
57
<PAGE>
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Corporation to
pay principal of or premium, if any, or interest on the Securities when due, the
Corporation acknowledges that a holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or premium, if any, or interest on the Securities having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such holder on or after the respective due date specified in the
Securities.
ARTICLE XIV.
REDEMPTION OF SECURITIES
Section 14.01. Special Event Redemption.
If a Special Event has occurred and is continuing then,
notwithstanding Section 14.02(a) but subject to Section 14.02(b), the
Corporation shall have the right at any time prior to the Initial Optional
Redemption Date, upon (i) not less than 45 days written notice to the Trustee,
which notice shall be accompanied by an Officers' Certificate certifying that a
Special Event entitling the Corporation to redeem the Securities pursuant to
this Section, has occurred and (ii) not less than 30 days nor more than 60 days
written notice to the Securityholders, to redeem the Securities, in whole (but
not in part), within 90 days following the occurrence of such Special Event at
the Special Event Redemption Price. Following a Special Event, the Corporation
shall take such action as is necessary to promptly determine the Special Event
Redemption Price, including without limitation the appointment by the
Corporation of a Quotation Agent. The Special Event Redemption Price shall be
paid prior to 12:00 noon, New York City time, on the date of such redemption or
such earlier time as the Corporation determines, provided that the Corporation
--------
shall deposit with the Trustee an amount sufficient to pay the Special Event
Redemption Price by 10:00 a.m., New York City time, on the date such Special
Event Redemption Price is to be paid. The Corporation shall provide the Trustee
with written notice of the Special Event Redemption Price promptly after the
calculation thereof, which notice shall include any calculation made by the
Quotation Agent in connection with the determination of the Special Event
Redemption Price.
Section 14.02. Optional Redemption by Corporation.
(a) Subject to the provisions of this Article XIV, the Corporation
shall have the right to redeem the Securities, in whole or in part, from time to
time, on or after Initial Optional Redemption Date at the optional redemption
prices set forth below (expressed as percentages of principal) plus accrued and
unpaid interest thereon (including Additional Interest and Compounded Interest,
if any) to the applicable date of redemption (the "Optional Redemption Price");
if redeemed during the 12-month period beginning September 1 of the years
indicated below:
58
<PAGE>
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2009 104.750%
2010 104.275%
2011 103.800%
2012 103.325%
2013 102.850%
2014 102.375%
2015 101.900%
2016 101.425%
2017 100.950%
2018 100.475%
2019 and thereafter 100.000%
</TABLE>
If the Securities are only partially redeemed pursuant to this Section
14.02, the Securities will be redeemed by lot or by any other method utilized by
the Trustee; provided, that if at the time of redemption the Securities are
--------
registered as a Global Security, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Securities held for the
account of its participants to be redeemed. The Optional Redemption Price shall
be paid prior to 12:00 noon, New York City time, on the date of such redemption
or at such earlier time as the Corporation determines, provided that the
--------
Corporation shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York time, on the date such
Optional Redemption Price is to be paid.
(b) Any redemption of Securities pursuant to Section 14.01 or Section
14.02 shall be subject to the Corporation obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable capital
guidelines or policies of the Federal Reserve.
Section 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
Section 14.04. Notice of Redemption; Selection of Securities.
In case the Corporation shall desire to exercise the right to redeem
all, or, as the case may be, any part of the Securities in accordance with their
terms, it shall fix a date for redemption and shall mail a notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the holders of Securities so to be redeemed as a whole or in part
at their last addresses as the same appear on the Security Register. Such
mailing shall be by first class mail. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any 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.
59
<PAGE>
Each such notice of redemption shall specify the CUSIP number of the
Securities to be redeemed, the date fixed for redemption, the redemption price
at which the Securities are to be redeemed (or the method by which such
redemption price is to be calculated), the place or places of payment, that
payment will be made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice, and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities are
to be redeemed, the notice of redemption shall specify the numbers of the
Securities to be redeemed. In case any Security is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
By 10:00 a.m. New York City time on the redemption date specified in
the notice of redemption given as provided in this Section, the Corporation will
deposit with the Trustee or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities so called for
redemption at the appropriate Redemption Price, together with accrued interest
to the date fixed for redemption.
The Corporation will give the Trustee notice not less than 45 days
prior to the redemption date as to the aggregate principal amount of Securities
to be redeemed and the Trustee shall select, in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities or portions
thereof (in integral multiples of $1,000, except as otherwise set forth in the
applicable form of Security) to be redeemed.
Section 14.05. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.04,
the Securities or portions of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price, together with interest
accrued to the date fixed for redemption (subject to the rights of holders of
Securities on the close of business on a regular record date in respect of an
Interest Payment Date occurring on or prior to the redemption date), and on and
after said date (unless the Corporation shall default in the payment of such
Securities at the Redemption Price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue. On presentation and surrender of such Securities at a
place of payment specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at the applicable
Redemption Price, together with interest accrued thereon to the date fixed for
redemption (subject to the rights of holders of Securities on the close of
business on a regular record date in respect of an Interest Payment Date
occurring on or prior to the redemption date).
Upon presentation of any Security redeemed in part only, the
Corporation shall execute and the Trustee shall authenticate and make available
for delivery to the holder thereof,
60
<PAGE>
at the expense of the Corporation, a new Security or Securities of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
ARTICLE XV.
SUBORDINATION OF SECURITIES
Section 15.01. Agreement to Subordinate.
The Corporation covenants and agrees, and each holder of Securities
issued hereunder likewise covenants and agrees, that the Securities shall be
issued subject to the provisions of this Article XV; and each holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Corporation of the principal of, premium, if any,
and interest on all Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
Section 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Corporation in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Corporation with respect to the principal
(including redemption payments) of or premium, if any, or interest on the
Securities.
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Corporation with respect to the principal
(including redemption payments) of or premium, if any, or interest on the
Securities until the holders of all Senior Indebtedness outstanding at the time
of such acceleration shall receive payment in full of such Senior Indebtedness
(including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraphs of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing, within 90 days of
such payment on such Senior Indebtedness.
61
<PAGE>
Section 15.03. Termination; Dissolution; Bankruptcy.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or termination or reorganization
of the Corporation, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all Senior Indebtedness of the
Corporation shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the
Corporation on account of the principal (and premium, if any) or interest on the
Securities; and upon any such dissolution or winding-up or termination or
reorganization, any payment by the Corporation, or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to which the Securityholders or the Trustee would be entitled to receive from
the Corporation, except for the provisions of this Article XV, shall be paid by
the Corporation or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under the Indenture if received by them or it,
directly to the holders of Senior Indebtedness of the Corporation or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay Senior Indebtedness in full, in money, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Securityholders
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior Indebtedness is paid in full, or provision is made
for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Corporation, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay Senior Indebtedness in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Corporation as
reorganized or readjusted, or securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
XV with respect to the Securities to the payment of Senior Indebtedness that may
at the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Corporation with, or the merger of the
62
<PAGE>
Corporation into, another Person or the termination or dissolution of the
Corporation following the sale, conveyance, transfer or lease of its property as
an entirety, or substantially as an entirety, to another Person upon the terms
and conditions provided for in Article X of this Indenture shall not be deemed a
dissolution, winding-up, termination or reorganization for the purposes of this
Section 15.03 if such other Person shall, as a part of such consolidation,
merger, sale, conveyance, transfer or lease, comply with the conditions stated
in Article X of this Indenture.
Section 15.04. Subrogation.
Subject to the payment in full of Senior Indebtedness, the rights of
the Securityholders shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Corporation, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Securityholders or the Trustee would
be entitled except for the provisions of this Article XV, and no payment over
pursuant to the provisions of this Article XV to or for the benefit of the
holders of such Senior Indebtedness by Securityholders or the Trustee, shall, as
between the Corporation, its creditors other than holders of Senior Indebtedness
of the Corporation, and the holders of the Securities, be deemed to be a payment
by the Corporation to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article XV are and are intended solely
for the purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness on the
other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Corporation,
its creditors other than the holders of Senior Indebtedness of the Corporation,
and the holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Securities
and creditors of the Corporation, as the case may be, other than the holders of
Senior Indebtedness of the Corporation, as the case may be, nor shall anything
herein or therein prevent the Trustee or the holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
the Indenture, subject to the rights, if any, under this Article XV of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Corporation, as the case may be, received upon the exercise of any such
remedy.
Section 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
63
<PAGE>
Section 15.06. Notice by the Corporation.
The Corporation shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Corporation that would prohibit
the making of any payment of moneys to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XV. Notwithstanding the
provisions of this Article XV or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article XV, unless
and until a Responsible Officer of the Trustee assigned to its Principal Office
shall have received written notice thereof from the Corporation or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Article VI of this Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
-------- -------
received the notice provided for in this Section 15.06 at least two Business
Days prior to the date (i) upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Security), or (ii) moneys
and/or U.S. Government Obligations are deposited in trust pursuant to Article XI
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and U.S. Government
Obligations and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Corporation (or a trustee or representative on behalf of
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XV, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the Corporation referred
to in this Article XV, the Trustee and the Securityholders shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, termination, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and
64
<PAGE>
other indebtedness of the Corporation, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
Section 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Article VI of this Indenture, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Corporation or any other Person money or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article XV
or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
Section 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Corporation and any other Person.
65
<PAGE>
ARTICLE XVI.
EXTENSION OF INTEREST PAYMENT PERIOD
Section 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 10 consecutive
semi-annual periods, including the first such semi-annual period during such
extension period (the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable; provided that no
-------- ----
Extended Interest Payment Period shall end on a date other than an Interest
Payment Date or extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 16.01, will
bear interest thereon at the Coupon Rate compounded semi-annually for each semi-
annual period of the Extended Interest Payment Period ("Compounded Interest").
At the end of the Extended Interest Payment Period, the Corporation shall pay
all interest accrued and unpaid on the Securities, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Securities in whose names the Securities are
registered in the Security Register on the first record date preceding the end
of the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Corporation may further defer payments of interest
by further extending such period, provided that such period, together with all
--------
such previous and further extensions within such Extended Interest Payment
Period, shall not exceed 10 consecutive semi-annual periods, including the first
such semi-annual period during such Extended Interest Payment Period, or end on
a date other than an Interest Payment Date or extend beyond the Maturity Date.
Upon the termination of any Extended Interest Payment Period and the payment of
all Deferred Interest then due, the Corporation may commence a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof, but the Corporation may prepay at any time all or any portion
of the interest accrued during an Extended Interest Payment Period.
Section 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Corporation selects an Extended Interest Payment
Period, the Corporation shall give written notice to the Administrative
Trustees, the Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period five Business Days before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued by First
Commonwealth Capital Trust are payable, or (ii) the date First Commonwealth
Capital Trust is required to give notice of the record date, or the date such
Distributions are payable, to any national securities exchange or to holders of
the Capital Securities issued by First Commonwealth Capital Trust, but in any
event at least five Business Days before such record date.
66
<PAGE>
(b) If the Property Trustee is not the only holder of the Securities
at the time the Corporation selects an Extended Interest Payment Period, the
Corporation shall give the holders of the Securities and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Corporation is required to give notice of the record
or payment date of such interest payment to any national securities exchange.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.01.
The Chase Manhattan Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
67
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
FIRST COMMONWEALTH FINANCIAL CORPORATION
By /s/ John J. Dolan
--------------------------------------
Name: John J. Dolan
Title: Senior Vice President & Chief Financial
Officer
THE CHASE MANHATTAN BANK
as Trustee
By /s/ Joanne Adamis
--------------------------------------
Name: Joanne Adamis
Title: Assistant Vice President
68
<PAGE>
EXHIBIT A
---------
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF 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 NO TRANSFER OF THIS 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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC") TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE CORPORATION OR ANY
"AFFILIATE" OF THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE CORPORATION, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
A-1
<PAGE>
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE CORPORATION, AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM
THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED SEPTEMBER 2, 1999 RELATING TO THE SERIES A CAPITAL SECURITIES. SUCH HOLDER
FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
A-2
<PAGE>
No.
FIRST COMMONWEALTH FINANCIAL CORPORATION
9.50% SERIES __ JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE SEPTEMBER 1, 2029
First Commonwealth Financial Corporation, a Pennsylvania corporation
(the "Corporation", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[_______________________] or registered assigns, the principal sum of
_________________ Dollars ($___________) on September 1, 2029 (the "Maturity
Date"), unless previously redeemed, and to pay interest on the outstanding
principal amount hereof from September 8, 1999, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on March 1 and September 1 of each year, commencing March 1,
2000 at the rate of 9.50% per annum until the principal hereof shall have become
due and payable, and at the same rate per annum on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded semi-annually. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period less than a full
calendar month, the actual number of days elapsed in such month. In the event
that any date on which the principal of (or premium, if any) or interest on this
Security is payable is not a Business Day, then the payment 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), with the same force and
effect as if made on such date. Pursuant to the Registration Rights Agreement,
in certain limited circumstances the Corporation will be required to pay
Liquidated Damages (as defined in the Registration Rights Agreement) with
respect to this Security.
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, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
fifteenth day of the month which precedes the month in which the relevant
interest payment date falls. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the holders on such
regular record date and may 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 to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the holders of Securities
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
A-3
<PAGE>
The principal of (and premium, if any) and interest on this Security
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
--------
however, that, payment of interest may be made at the option of the Corporation
- -------
by (i) check mailed to the holder at such address as shall appear in the
Security Register or (ii) by transfer to an account maintained by the Person
entitled thereto, provided that proper written transfer instructions have been
received by the relevant record date. Notwithstanding the foregoing, so long as
the Holder of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this Security will be made at
such place and to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of Senior Indebtedness, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. Each holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
A-4
<PAGE>
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
Dated ___________________
FIRST COMMONWEALTH FINANCIAL CORPORATION
By: ____________________________
Name:
Title:
Attest:
By: ______________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By______________________________
Authorized Officer
A-5
<PAGE>
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Corporation (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of September
8, 1999 (the "Indenture"), duly executed and delivered between the Corporation
and The Chase Manhattan Bank, as Trustee (the "Trustee"), to which Indenture
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Corporation
and the holders of the Securities.
Upon the occurrence and continuation of a Special Event, the
Corporation shall have the right at any time, within 90 days following the
occurrence of a Special Event, prior to September 1, 2009 (the "Initial Optional
Redemption Date"), to redeem this Security in whole (but not in part) at the
Special Event Redemption Price. "Special Event Redemption Price" shall mean,
with respect to any redemption of the Securities following a Special Event, an
amount in cash equal to the greater of (i) 100% of the principal amount to be
redeemed or (ii) the sum, as determined by a Quotation Agent, of the present
values of the principal amount and premium payable with respect to an Optional
Redemption (as defined below) on the Initial Optional Redemption Date, together
with scheduled payments of interest on the Securities from the redemption date
to and including the Initial Optional Redemption Date, discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, any
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such redemption.
In addition, the Corporation shall have the right to redeem this
Security, in whole or in part, at any time on or after the Initial Optional
Redemption Date (an "Optional Redemption"), at the Optional Redemption Price as
set forth below (expressed as percentages of principal to be redeemed) plus
accrued and unpaid interest thereon (including Additional Interest and
Compounded Interest, if any) to the applicable date of redemption: if redeemed
during the 12-month period beginning September 1 of the years indicated below.
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2009 104.750%
2010 104.275%
2011 103.800%
2012 103.325%
2013 102.850%
2014 102.375%
2015 101.900%
2016 101.425%
2017 100.950%
2018 100.475%
2019 and thereafter 100.000%
</TABLE>
A-6
<PAGE>
The Optional Redemption Price or the Special Event Redemption Price,
as the case requires, shall be paid prior to 12:00 noon, New York City time, on
the date of such redemption or at such earlier time as the Corporation
determines, provided, that the Corporation shall deposit with the Trustee an
amount sufficient to pay the applicable Redemption Price by 10:00 a.m., New York
City time, on the date such Redemption Price is to be paid. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more than
60 days notice. If the Securities are only partially redeemed by the Corporation
pursuant to an Optional Redemption, the Securities will be redeemed pro rata or
--- ----
by lot or by any other method utilized by the Trustee; provided that if, at the
--------
time of redemption, the Securities are registered as a Global Security, the
Depositary shall determine in accordance with its procedures the principal
amount of such Securities held for the account of its participants to be
redeemed.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Securities by the
Corporation shall be subject to the receipt by the Corporation of any required
regulatory approval.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Securities at the time outstanding, as defined in the Indenture,
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such supplemental indenture shall, without the
- -------- -------
consent of each holder of Securities then outstanding and affected thereby, (i)
extend the Maturity Date of any Securities, or reduce the principal amount
thereof, or reduce any amount payable on redemption thereof, or reduce the rate
or extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or make the principal of, or interest or premium on, the Securities
payable in any coin or currency other than U.S. dollars, or impair or affect the
right of any holder of Securities to institute suit for the payment thereof, or
(ii) reduce the aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Securities at the time outstanding, on behalf of all of the
holders of the Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Securities or a
default in respect of any covenant or provision under which the Indenture cannot
be modified or amended without the consent of each holder of Securities then
outstanding. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the
A-7
<PAGE>
Indenture) shall be conclusive and binding upon such Holder and upon all future
holders and owners of this Security and of any Security issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Security at the time and place and at the rate and in
the money herein prescribed.
The Corporation shall have the right, at any time and from time to
time during the term of the Securities, to defer payments of interest by
extending the interest payment period of such Securities for a period (an
"Extended Interest Payment Period") not exceeding 10 consecutive semi-annual
periods, including the first such semi-annual period during such extension
period, provided, however, no Extended Interest Payment Period may end on a day
other than an Interest Payment Date or extend beyond the Maturity Date of the
Securities. At the end of an Extended Interest Payment Period, the Corporation
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Securities to the extent that payment of such
interest is enforceable under applicable law). Before the termination of any
such Extended Interest Payment Period, the Corporation may further defer
payments of interest by further extending such Extended Interest Payment Period,
provided that such Extended Interest Payment Period, together with all such
- --------
previous and further extensions within such Extended Interest Payment Period,
shall not exceed 10 consecutive semi-annual periods, including the first semi-
annual period during such Extended Interest Payment Period, shall not end on any
date other than an Interest Payment Date or extend beyond the Maturity Date of
the Securities. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Corporation may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Corporation has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem any
debt securities of the Corporation that rank pari passu with or junior in right
of payment to the Securities or (iii) make any guarantee payments with respect
to any guarantee by the Corporation of any securities or any Subsidiary of the
Corporation (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Securities (other than (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock of the Corporation; (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; (c) payments under the Capital
Securities Guarantee; (d) as a direct result of, and only to the extent required
in order to avoid the issuance of fractional shares of capital stock following a
reclassification of the Corporation's capital stock or the exchange or the
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital
A-8
<PAGE>
stock; (e) the purchase of fractional interests in shares of the Corporation's
capital stock pursuant to the exchange or conversion of such capital stock or
the security being exchanged or converted and (f) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Corporation's
benefit plans for its directors, officers or employees or the Corporation's
dividend reinvestment plan) if at such time (i) an Event of Default shall have
occurred and be continuing, (ii) there shall have occurred any event of which
the Corporation has actual knowledge that (a) is, or with the giving of notice
or the lapse of time, or both, would be, an Event of Default and (b) in respect
of which the Corporation shall not have taken reasonable steps to cure, (iii) if
such Securities are held by First Commonwealth Capital Trust, the Corporation
shall be in default with respect to its payment obligations under the Capital
Securities Guarantee or (iv) the Corporation shall have given notice of its
election of the exercise of its right to extend the interest payment period and
any such extension shall be continuing.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to the transfer restrictions limitations as may be
contained herein and therein from time to time, this Security is transferable by
the holder hereof on the Security Register of the Corporation, upon surrender of
this Security for registration of transfer at the office or agency of the
Corporation in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Security registrar duly executed by the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in relation
thereto.
The Corporation shall withhold from payments of interest on the
Securities any amount that the Corporation determines that it is required to
withhold pursuant to the Pennsylvania Corporate Loans Tax because the Securities
are held, directly or indirectly, by any Person who is subject to such tax, in
which case the Corporation shall promptly notify any Holder of the Securities in
respect of which it has made such a withholding of the amount thereof, by
written notice sent to the address of such Holder as shall appear in the
Security Register, and in the event that the Securities are held by First
Commonwealth Capital Trust and the Corporation determines that the Securities
are subject to such a withholding as a result of the fact that any holder of
beneficial interests in First Commonwealth Capital Trust is a Person subject to
such tax, the Corporation shall promptly notify the Property Trustee for First
Commonwealth Capital Trust of the identity of each such holder of such
beneficial interests and of the amount withheld in respect thereof.
Prior to due presentment for registration of transfer of this
Security, the Corporation, the Trustee, any authenticating agent, any paying
agent, any transfer agent and the Security Registrar may deem and treat the
holder hereof as the absolute owner hereof (whether or not this Security shall
be overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and (subject to
the Indenture)
A-9
<PAGE>
interest due hereon and for all other purposes, and neither the Corporation nor
the Trustee nor any authenticating agent nor any paying agent nor the Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-10
<PAGE>
Exhibit 4.4
CERTIFICATE OF TRUST
OF
FIRST COMMONWEALTH CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of First Commonwealth Capital Trust I (the
"Trust"), dated as of August 16, 1999, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801, et seq.) (the "Act").
------- -- ---
(i) Name. The name of the business trust being formed hereby is First
----
Commonwealth Capital Trust I.
(ii) Delaware Trust. The name and business address of the trustee of the
--------------
Trust in the State of Delaware are Chase Manhattan Bank Delaware, 1201 Market
Street, Wilmington, Delaware 19801, Attention: Corporate Trust Administration.
(iii) Effective Date. This Certificate of Trust shall be effective as of
--------------
its filing with the Secretary of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act as of the date first above written.
THE CHASE MANHATTAN BANK, as trustee
By: /s/ J. Adamis
-------------------------------------
Name: J. Adamis
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE, as trustee
By: /s/ John J. Cashin
-------------------------------------
Name: John J. Cashin
Title: Vice-President
<PAGE>
EXHIBIT 4.5
=============================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
First Commonwealth Capital Trust I
September 8, 1999
=============================================================
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C>
SECTION 1.1. Definitions............................................. 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act Application......................... 8
SECTION 2.2. Lists of Holders of Securities.......................... 9
SECTION 2.3. Reports by the Property Trustee......................... 9
SECTION 2.4. Periodic Reports to Property Trustee.................... 9
SECTION 2.5. Evidence of Compliance with Conditions
Precedent............................................... 10
SECTION 2.6. Events of Default; Waiver............................... 10
SECTION 2.7. Event of Default: Notice................................ 12
ARTICLE III
ORGANIZATION
SECTION 3.1. Name.................................................... 12
SECTION 3.2. Office.................................................. 12
SECTION 3.3. Purpose................................................. 13
SECTION 3.4. Authority............................................... 13
SECTION 3.5. Title to Property of the Trust.......................... 13
SECTION 3.6. Powers and Duties of the Administrative
Trustees................................................ 13
SECTION 3.7. Prohibition of Actions by the Trust and the
Trustees................................................ 16
SECTION 3.8. Powers and Duties of the Property Trustee............... 17
SECTION 3.9. Certain Duties and Responsibilities of the
Property Trustee........................................ 19
SECTION 3.10. Certain Rights of Property Trustee...................... 20
SECTION 3.11. Delaware Trustee........................................ 22
SECTION 3.12. Execution of Documents.................................. 23
SECTION 3.13. Not Responsible for Recitals or Issuance of
Securities.............................................. 23
SECTION 3.14. Duration of Trust....................................... 23
SECTION 3.15. Mergers................................................. 23
ARTICLE IV
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities................. 25
SECTION 4.2. Responsibilities of the Sponsor......................... 25
SECTION 4.3. Right To Proceed........................................ 25
</TABLE>
i
<PAGE>
ARTICLE V
TRUSTEES
<TABLE>
<S> <C>
SECTION 5.1. Number of Trustees: Appointment of Co-Trustee........... 26
SECTION 5.2. Delaware Trustee........................................ 26
SECTION 5.3. Property Trustee; Eligibility........................... 27
SECTION 5.4. Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally............................. 28
SECTION 5.5. Administrative Trustees................................. 28
SECTION 5.6. Delaware Trustee........................................ 28
SECTION 5.7. Appointment, Removal and Resignation of Trustees........ 28
SECTION 5.8. Vacancies among Trustees................................ 30
SECTION 5.9. Effect of Vacancies..................................... 30
SECTION 5.10. Meetings................................................ 30
SECTION 5.11. Delegation of Power..................................... 31
SECTION 5.12. Merger, Conversion, Consolidation or Succession
to Business............................................. 31
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. Distributions........................................... 31
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities................. 32
SECTION 7.2. Execution and Authentication............................ 32
SECTION 7.3. Form and Dating......................................... 33
SECTION 7.4. Registrar, Paying Agent and Exchange Agent.............. 35
SECTION 7.5. Paying Agent to Hold Money in Trust..................... 35
SECTION 7.6. Replacement Securities.................................. 35
SECTION 7.7. Outstanding Capital Securities.......................... 36
SECTION 7.8. Capital Securities in Treasury.......................... 36
SECTION 7.9. Temporary Securities.................................... 36
SECTION 7.10. Cancellation............................................ 37
SECTION 7.11. CUSIP Numbers........................................... 37
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust.................................... 38
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities.................................. 39
SECTION 9.2. Transfer Procedures and Restrictions.................... 39
SECTION 9.3. Book Entry Interests.................................... 48
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 9.4. Notices to Clearing Agency.............................. 49
SECTION 9.5. Appointment of Successor Clearing Agency................ 49
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability............................................... 49
SECTION 10.2. Exculpation............................................. 49
SECTION 10.3. Fiduciary Duty.......................................... 50
SECTION 10.4. Indemnification......................................... 51
SECTION 10.5. Outside Businesses...................................... 53
SECTION 10.6. Compensation; Fees...................................... 54
ARTICLE XI
ACCOUNTING
SECTION 11.1. Fiscal Year............................................. 54
SECTION 11.2. Certain Accounting Matters.............................. 54
SECTION 11.3. Banking................................................. 55
SECTION 11.4. Withholding............................................. 55
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments.............................................. 55
SECTION 12.2. Meetings of the Holders; Action by Written Consent...... 57
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Property Trustee...... 59
SECTION 13.2. Representations and Warranties of Delaware Trustee...... 59
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1. Registration Rights Agreement........................... 60
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Notices................................................. 60
SECTION 15.2. Governing Law........................................... 61
SECTION 15.3. Intention of the Parties................................ 61
SECTION 15.4. Headings................................................ 62
SECTION 15.5. Successors and Assigns.................................. 62
SECTION 15.6. Partial Enforceability.................................. 62
SECTION 15.7. Counterparts............................................ 62
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
ANNEX 1 TERMS OF SECURITIES.................................... I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE................... A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE.................... A2-1
EXHIBIT B FORM OF PURCHASE AGREEMENT............................. B-1
</TABLE>
iv
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OF
FIRST COMMONWEALTH CAPITAL TRUST I
September 8, 1999
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated and
effective as of September 8, 1999, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration.
WITNESSETH:
WHEREAS, certain of the Trustees and the Sponsor established First
Commonwealth Capital Trust I (the "Trust"), a trust created under the Delaware
Business Trust Act pursuant to a Declaration of Trust dated as of August 16,
1999 (the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on August 16, 1999, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer (each as hereinafter
defined); and
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to set up
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 declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions.
-----------
Unless the context otherwise requires:
1. capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
2. a term defined anywhere in this Declaration has the same meaning
throughout;
3. all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
<PAGE>
4. all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
5. a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
6. a reference to the singular includes the plural and vice versa.
"Administrative Trustee" has the meaning set forth in Section 5.1.
----------------------
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange Agent.
-----
"Authorized Officer" of a Person means any other Person that is
------------------
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global Capital
-------------------
Security registered in the name of a Clearing Agency or its nominee, ownership
and transfers of which shall be maintained and made through book entries by a
Clearing Agency as described in Section 9.3.
"Business Day" means any day other than a Saturday or a Sunday or a
------------
day on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
-- ---
any successor legislation.
"Capital Security Beneficial Owner" means, with respect to a Book
---------------------------------
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Capital Securities" means, collectively, the Series A Capital
------------------
Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the Series A
----------------------------
Capital Securities Guarantee and the Series B Capital Securities Guarantee, as
amended from time to time.
"Clearing Agency" means an organization registered as a "Clearing
---------------
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered
2
<PAGE>
a Global Capital Security and which shall undertake to effect book entry
transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Time" means a "Closing Time" under the Purchase Agreement.
------------
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
----------
Commission as from time to time constituted, or if any time after the execution
of this Declaration such Commission is not existing and performing the duties
now assigned to it under applicable Federal securities laws, then the body
performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement dated as
---------------------------
of September 8, 1999 of the Sponsor in respect of the Common Securities, as
amended from time to time.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
--------------------------
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of the Trust or
its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at
----------------------
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at 450 West 33rd Street, 15th Floor,
New York, New York 10001.
"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 of Securities.
"Debenture Issuer" means First Commonwealth Financial Corporation, a
----------------
Pennsylvania corporation, or any successor entity resulting from any
consolidation, amalgamation, merger or other business combination, in its
capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
-----------------
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means, collectively, the Series A Debentures and the
----------
Series B Debentures.
3
<PAGE>
"Default" means an event, act or condition that with notice of lapse
-------
of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" shall have the meaning set forth in
-----------------------------
Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Direct Action" shall have the meaning set forth in Section 3.8(e).
-------------
"Distribution" means a distribution payable to Holders in accordance
------------
with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
---
"Event of Default" in respect of the Securities means an Event of
----------------
Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section 7.4.
--------------
"Exchange Offer" means the offer that may be made pursuant to the
--------------
Registration Rights Agreement (i) by the Trust to exchange Series B Capital
Securities for Series A Capital Securities and (ii) by the Debenture Issuer to
exchange Series B Debentures for Series A Debentures and the Series B Capital
Securities Guarantee for the Series A Capital Securities Guarantee.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Global Capital Securities" has the meaning set forth in Section
-------------------------
7.3(a).
"Holder" means a Person in whose name a Security is registered, such
------
Person being a beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the Indenture dated as of September 8, 1999, between
---------
the Debenture Issuer and The Chase Manhattan Bank, as Trustee, as amended from
time to time.
"Initial Closing Time" means the Initial Closing Time as defined in
--------------------
the Purchase Agreement.
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
4
<PAGE>
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"Like Amount" has the meaning set forth in Section 3 of Annex I
-----------
hereto.
"List of Holders" has the meaning set forth in Section 2.2.
---------------
"Majority in liquidation amount" means, with respect to the Trust
------------------------------
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Offering Memorandum" has the meaning set forth in Section 3.6(b).
-------------------
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by any of the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Comptroller, the Secretary or an
Assistant Secretary 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 the officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by the officer in rendering the Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
------------------
be an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee.
"Paying Agent" has the meaning specified in Section 7.4.
------------
"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.
5
<PAGE>
"PORTAL Market" means the Private Offerings, Resales and Trading
-------------
through Automated Linkages Market.
"Property Trustee" has the meaning set forth in Section 5.3(a).
----------------
"Property Trustee Account" has the meaning set forth in Section
------------------------
3.8(c).
"Purchase Agreement" means the Purchase Agreement for the initial
------------------
offering and sale of Capital Securities in the form of Exhibit B.
"QIBs" shall mean qualified institutional buyers as defined in Rule
----
144A.
"Quorum" means a majority of the Administrative Trustees or, if there
------
are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of September 8, 1999, by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein, as amended from time to time.
"Registration Statement" has the meaning set forth in the Registration
----------------------
Rights Agreement.
"Regulation S" means Regulation S under the Securities Act, as such
------------
regulation may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Regulation S Global Capital Security" has the meaning set forth in
------------------------------------
Section 7.3(a).
"Related Party" means, with respect to the Sponsor, any direct or
-------------
indirect wholly owned subsidiary of the Sponsor or any other 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 within the Corporate Trust Office of the Property Trustee 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.
"Restricted Definitive Capital Securities" has the meaning set forth
----------------------------------------
in Section 7.3(c).
"Restricted Capital Security" means a Capital Security required by
---------------------------
Section 9.2 to contain a Restricted Securities Legend.
"Restricted Securities Legend" has the meaning set forth in Section
----------------------------
9.2(h).
6
<PAGE>
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
---------
successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as such rule may
--------
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
---------
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A Global Capital Security" has the meaning set forth in
---------------------------------
Section 7.3(a).
"Second Closing Time" means the Second Closing Time as defined in the
-------------------
Purchase Agreement.
"Securities" or "Trust Securities" means the Common Securities and the
---------- ----------------
Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
---------------------
Capital Securities Guarantee.
"Series A Capital Securities" has the meaning specified in Section
---------------------------
7.1(a).
"Series B Capital Securities" has the meaning specified in Section
---------------------------
7.1(a).
"Series A Capital Securities Guarantee" means the guarantee agreement
-------------------------------------
dated as of September 8, 1999 of Sponsor in respect of the Series A Capital
Securities, as amended from time to time.
"Series B Capital Securities Guarantee" means the guarantee agreement
-------------------------------------
to be entered in connection with the Exchange Offer by the Sponsor in respect of
the Series B Capital Securities, as amended from time to time.
"Series A Debentures" means the Series A 9.50% Junior Subordinated
-------------------
Deferrable Interest Debentures due September 1, 2029 of the Debenture Issuer
issued pursuant to the Indenture.
"Series B Debentures" means the Series B 9.50% Junior Subordinated
-------------------
Deferrable Interest Debentures due September 1, 2029 of the Debenture Issuer
issued pursuant to the Indenture.
"Special Event" has the meaning set forth in Section 4(c) of Annex I
-------------
hereto.
7
<PAGE>
"Sponsor" means First Commonwealth Financial Corporation, a
-------
Pennsylvania corporation, or any successor entity resulting from any merger,
consolidation, amalgamation or other business combination, in its capacity as
sponsor of the Trust.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"10% in liquidation amount" means, with respect to the Trust
-------------------------
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"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).
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Unrestricted Global Capital Security" has the meaning set forth in
------------------------------------
Section 9.2(b).
ARTICLE II
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
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
8
<PAGE>
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust Registrar for the Securities (i) within 14 days after each record 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 ("List of
Holders") as of such record date, provided that neither the Sponsor nor the
Administrative 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
Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. 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 Registrar (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
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Property Trustee.
-------------------------------
Within 60 days after May 15 of each year, commencing May 15, 2000, the
Property Trustee shall provide to the Holders of the Capital Securities such
reports as are required by (S) 313(a) of the Trust Indenture Act, if any, in the
form and in the manner provided by (S) 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the other requirements of (S) 313 of the
Trust Indenture Act.
SECTION 2.4. Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by (S) 314 (if any) and the compliance certificate
required by (S) 314 of the Trust Indenture Act in the form, in the manner and at
the times required by (S) 314(a)(4) of the Trust Indenture Act, such compliance
certificate to be delivered annually on or before 120 days after the end of each
fiscal year of the Sponsor. Delivery of such documents, reports and information
to the Property Trustee is for informational purposes only and the Property
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Sponsor's compliance with any of its covenants hereunder
(as to which the Property Trustee is entitled to rely exclusively on Officers'
Certificates).
9
<PAGE>
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Declaration that relate to any of the
matters set forth in (S) 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to (S) 314(c) (1) of the
Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital Securities
and its consequences, provided that, if the underlying Event of Default under
the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Capital 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 (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 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. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default 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.
The Holders of a Majority in liquidation amount of the Capital
Securities shall 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,
including the right to direct the Property Trustee to exercise the remedies
available to it as holder of the Debentures, provided, however, that (subject to
the provisions of Section 3.9) the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee shall determine
that the action so directed would be unjustly prejudicial to the Holders not
taking part in such direction or if the Property Trustee, being advised by
counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Property Trustee, in good faith, by its board of directors or
trustees, executive committee, or a trust
10
<PAGE>
committee of directors or trustees and/or Responsible Officers, shall determine
that the action or proceedings so directed would involve the Property Trustee in
personal liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b), the
Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
aggregate 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 such Event of Default and all Events of Default with respect to the Common
Securities and its consequences if all Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated, and until
such Events of Default 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 Capital Securities and only the Holders of the Capital 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
(S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such (S)(S)
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 waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Capital Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
(S) 316(a)(1)(B) of the Trust Indenture Act and such (S) 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.
11
<PAGE>
SECTION 2.7. Event of Default: Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notice of all Defaults with respect to the Securities
actually known to a Responsible Officer of the Property Trustee, unless such
Defaults have been cured before the giving of such notice; 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 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.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(a), (b), (d) and (e) of the
Indenture relating to the Debentures; 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 the Declaration shall have
actual knowledge.
(c) Within ten Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Event of Default to the holders of the Capital
Securities, the Administrative Trustees and the Sponsor, unless such Event of
Default shall have been cured or waived. The Sponsor and the Administrative
Trustees shall file annually with the Property Trustee, in accordance with
Section 2.4, a certification as to whether or not they are in compliance with
all the conditions and covenants applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1. Name.
----
The Trust is named "First Commonwealth Capital Trust I" as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
SECTION 3.2. Office.
------
The address of the principal executive office of the Trust is c/o
First Commonwealth Financial Corporation, 22 North Sixth Street, Indiana,
Pennsylvania 15701, Attention: Chief Financial Officer. On ten Business Days
written notice to the Property Trustee, the Delaware Trustee and the Holders of
Securities, the Administrative Trustees may designate another principal office.
12
<PAGE>
SECTION 3.3. Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities, (b) use the proceeds from the sale of the Securities to acquire
the Debentures, and (c) except as otherwise limited herein, to engage in only
those other activities necessary, advisable or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage or pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.
SECTION 3.4. Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative 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.
SECTION 3.5. Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Administrative Trustees.
------------------------------------------------
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided, however, that except, in the case of (i) and (iii), as
contemplated in Section 7.1(a), (i) the Trust may issue no more than one series
of Capital Securities and no more than one series of Common Securities, (ii)
there shall be no interests in the Trust other than the Securities, and (iii)
the issuance of Securities shall be limited to a simultaneous issuance of both
Capital Securities and Common Securities at any Closing Time,
(b) in connection with the issue and sale of the Capital Securities
and the consummation of the Exchange Offer to:
(i) prepare and execute, if necessary, an offering memorandum
(the "Offering Memorandum") in preliminary and final form prepared by the
Sponsor, in relation to the offering and sale of Series A Capital
Securities to qualified institutional buyers in reliance on Rule 144A under
the Securities Act and to institutional "accredited
13
<PAGE>
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) and outside the United States to non-U.S. persons in
offshore transactions in reliance on Regulation S under the Securities Act,
and to execute and file with the Commission, at such time as determined by
the Sponsor, any Registration Statement, including any amendments thereto,
as contemplated by the Registration Rights Agreement;
(ii) 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 Capital Securities in any State in
which the Sponsor has determined to qualify or register such Capital
Securities for sale;
(iii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to designate the Capital Securities
for trading in the PORTAL Market;
(iv) to execute and deliver letters, documents, or instruments
with DTC and other Clearing Agencies relating to the Capital Securities;
(v) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Capital
Securities under Section 12(b) of the Exchange Act; and
(vi) execute and enter into the Registration Rights Agreement,
the Debenture Subscription Agreement and the Common Securities Subscription
Agreement;
(c) to acquire the Series A Debentures with the proceeds of the sale
of the Series A Capital Securities and the Common Securities and to exchange the
Series A Debentures for a like principal amount of Series B Debentures, pursuant
to the Exchange Offer; provided, however, that the Administrative 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;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a 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 (S)316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of 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;
14
<PAGE>
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants 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 (S) 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative 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
Exchange Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(m) to give prompt written notice to the Property Trustee and to
Holders 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 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 Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrative Trustees determine in their
discretion to be necessary or desirable in carrying out 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 for United States
federal income tax purposes as a grantor trust; 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 consummate the Exchange Offer or
otherwise cause the Capital Securities to be registered pursuant to an effective
registration statement in accordance with the provisions of the Registration
Rights Agreement;
(q) 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 Administrative Trustees, on behalf of
the Trust; and
15
<PAGE>
(r) to execute 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 Administrative Trustees must 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 Administrative Trustees 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 Administrative 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 Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Sponsor. The Administrative Trustees
shall take all actions on behalf of the Trust that are not specifically required
by this Declaration to be taken by any other Trustee.
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. The Trust shall not:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders pursuant to
the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever
except as otherwise expressly provided herein;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or Section 5(b)
of Annex I, (A) direct the time, method and place of conducting any
proceeding with respect to any remedy available to the Debenture Trustee,
or 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
16
<PAGE>
opinion of an independent tax counsel experienced in such matters to the
effect that such modification will not cause more than an insubstantial
risk that for United States federal income tax purposes the Trust will not
be classified as a grantor trust; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no consent shall be given by the Property Trustee without
the prior approval of each Holder of the Capital 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 in trust for the benefit of the
Holders. 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 5.7. 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 Administrative 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 Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders 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 Trustee
Account and make payments to the Holders of the Capital Securities and
Holders of the Common Securities from the Property Trustee Account in
accordance with Section 6.1. Funds in the Property Trustee Account shall be
held uninvested until disbursed in accordance with this Declaration. The
Property Trustee 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 Capital Securities by a
"nationally recognized statistical rating organization," as that term is
defined for purposes 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 Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain events.
(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 the Securities.
17
<PAGE>
(e) Subject to Section 3.9(a), the Property Trustee shall take any
Legal Action which arises out of or in connection with (A) an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
(B) the Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act, and if such Property Trustee shall have failed to take such
Legal Action, the Holders of Capital Securities, to the fullest extent permitted
by applicable law, may take such Legal Action, to the same extent as if such
Holders of Capital Securities held an aggregate principal amount of Debentures
equal to the aggregate liquidation amount of such Capital Securities, without
first proceeding against the Property Trustee or the Trust; provided however,
that if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay the principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights
of such Holder of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Capital Securities
will not be able to exercise directly any other remedy available to the holders
of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders 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 5.7 (a "Successor
Property Trustee").
(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 an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the Property Trustee shall, for
the benefit of Holders, 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 shall be authorized to undertake any actions
set forth in (S) 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and 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 (S) 317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or additional
Paying Agents may be (but are not required to be) appointed at any time by the
Property Trustee while it is so acting as Paying Agent.
18
<PAGE>
(j) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
(k) The Property Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from the Debenture Issuer
of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
The Property Trustee must 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 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 Event of
Default and after the curing of all Trust Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and in the Securities and no implied covenants shall
be read into this Declaration or the Securities against the Property Trustee. In
case an Event of Default 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 an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities 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 in the Securities,
and no implied covenants or obligations shall be read into this
Declaration or the Securities 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;
provided, however, that 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 to examine the same to determine whether or not they conform to
the requirements of this Declaration;
19
<PAGE>
(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 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 Trustee 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 in writing
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 Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative 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 Administrative
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
20
<PAGE>
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 o r act of the Sponsor or the Administrative
Trustees contemplated by this Declaration may 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 Administrative 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 or other
experts of its selection and the written advice or opinion of such counsel
and experts with respect to legal matters or written 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 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 reasonable 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)(vi) shall
be taken to relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this 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,
21
<PAGE>
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 the
Holders 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;
and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration.
(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 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 5.2, 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 Administrative Trustees or the Property Trustee described in this
Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
(S)3807 of the Business Trust Act. In the event the Delaware Trustee shall at
any time be required to take action or
22
<PAGE>
perform any duty hereunder with respect to the Trust, the Delaware Trustee shall
be entitled to the benefits of Section 3.9(b) and Section 3.10.
SECTION 3.12. Execution of Documents.
----------------------
Except as otherwise required by the Business Trust Act or this
Declaration, any Administrative Trustee is authorized to execute on behalf of
the Trust any documents that the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6; provided that
the Registration Statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by all of the Administrative 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 Debentures or the Securities.
SECTION 3.14. Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence up to September 1, 2030.
SECTION 3.15. Mergers.
-------
(a) The Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
(b) The Trust may, at the request of the Sponsor, with the consent of
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders, the Delaware
Trustee or the Property Trustee, merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, a trust organized as such under the
laws of any State; provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
23
<PAGE>
(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee as
the Holder of the Debentures;
(iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or with another organization on which the Capital
Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital 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 (including any Successor
Securities) in any material respect (other than with respect to any
dilution of such Holders' interests in the new entity);
(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 an independent counsel to the Trust experienced in such matters
to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders (including any Successor
Securities) in any material respect (other than with respect to any
dilution of the Holders' interest in the new entity); and
(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
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities of such Successor Entity and guarantees the
obligations of such Successor Entity under the Successor Securities at
least to the extent provided by the Capital Securities Guarantee and the
Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the Successor Entity not to be classified as a grantor trust for United
States federal income tax purposes.
24
<PAGE>
ARTICLE IV
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities.
---------------------------------------
At the Initial Closing Time, the Sponsor will purchase all of the
Common Securities then issued by the Trust, in an amount at least equal to 3% of
the capital of the Trust at such time as provided in the Common Securities
Subscription Agreement dated as of September 8, 1999 between the Sponsor and the
Trust (the "Common Securities Subscription Agreement"), at the same time as the
Series A Capital Securities to be issued at the Initial Closing Time are issued
and sold. In addition, at the Second Closing Time, the Sponsor will purchase
such additional number of Common Securities as provided in the Common Securities
Subscription Agreement.
SECTION 4.2. Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare the Offering Memorandum and to prepare for filing by
the Trust with the Commission any Registration Statement, including any
amendments thereto as contemplated by the Registration Rights Agreement;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) if deemed necessary or advisable by the Sponsor, to prepare or
cause to be prepared for filing by the Trust an application to designate the
Capital Securities for trading in the PORTAL Market;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Capital
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto;
(e) to negotiate the terms of and execute the Purchase Agreement
providing for the sale of the Capital Securities; and
(f) perform any and all acts necessary or desirable as determined by
the Sponsor to effectuate the Exchange Offer.
SECTION 4.3. Right To Proceed.
----------------
The Sponsor acknowledges the rights of the Holders of Capital
Securities, in the event that a failure of the Trust to pay Distributions on the
Capital Securities is attributable to the
25
<PAGE>
failure of the Company to pay interest or principal on the Debentures, to
institute a Direct Action for enforcement of its payment obligations on the
Debentures.
ARTICLE V
TRUSTEES
SECTION 5.1. Number of Trustees: Appointment of Co-Trustee.
---------------------------------------------
The number of Trustees initially shall be five (5), 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;
provided, however, that the number of Trustees shall in no event be less than
two (2); and provided further that (1) one Trustee shall satisfy the
requirements of the Delaware Trustee pursuant to Section 5.2; (2) there shall be
at least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); 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. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in liquidation amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Declaration. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2. Delaware Trustee.
----------------
If required by the Business Trust Act, one 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,
26
<PAGE>
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 5.3. Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee (the "Property 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 Person permitted by the
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 5.3(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 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of (S) 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 (S) 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of (S) 310(b) of the Trust Indenture Act.
(d) The Capital Securities Guarantee and the Indenture 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.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
27
<PAGE>
SECTION 5.4. Certain Qualifications of Administrative Trustees and Delaware
--------------------------------------------------------------
Trustee Generally.
----------------
Each Administrative 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 5.5. Administrative Trustees.
-----------------------
The initial Administrative Trustees shall be:
John J. Dolan
R. John Previte
Gerard M. Thomchick
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) An Administrative Trustee shall have the authority set forth in
Section 3.12 to execute on behalf of the Trust any documents which the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6; and
(c) An Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 5.6. Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration Department
SECTION 5.7. Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.7(b) of this Declaration and to Section 6(b)
of Annex I hereto, 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;
28
<PAGE>
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a
single class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a Majority
in liquidation amount of the Capital Securities voting as a single class at
a meeting of Holders of the Capital Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until 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 Administrative Trustees
and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 5.2
and 5.4 (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 Administrative Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or 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; o r
(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 5.7.
29
<PAGE>
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, 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 5.8. Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9. Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with Section 5.7, the
Administrative Trustees in office, regardless of their number, shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration.
SECTION 5.10. Meetings.
--------
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative 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 such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative 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 Administrative
30
<PAGE>
Trustees may be taken at a meeting by vote of a majority of the Administrative
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 Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 5.11. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Administrative 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 Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person, as the case may be, may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. If and to the extent that the
Debenture Issuer makes a payment of interest (including Compounded Interest (as
defined in the Indenture) and Additional Interest (as defined in the
Indenture)), premium and/or principal on the Debentures held by the Property
Trustee or Liquidated Damages (as defined in the Registration Rights Agreement)
or any other payments pursuant to the Registration Rights Agreement with respect
to 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
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
31
<PAGE>
In the event that, pursuant to Section 2.03 of the Indenture, (i) the
Sponsor has withheld amounts from interest payments on the Debentures pursuant
to the Pennsylvania Corporate Loans Tax because any Holder of the Securities is
a Person who is subject to such tax and (ii) the Sponsor has notified the
Property Trustee of the identity of any such Person and the amount withheld in
respect thereof, the Property Trustee shall reduce the amount of the
Distributions it makes to such Person by the amount of such withholding and
shall promptly notify such Holder of the amount of such reduction at the address
of such Holder set forth in the Security Register (as defined in the Indenture).
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities.
---------------------------------------
(a) The Administrative Trustees shall on behalf of the Trust issue
one class of capital securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Annex I (the
"Series A Capital Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Administrative Trustees
shall on behalf of the Trust issue one class of capital securities representing
undivided beneficial interests in the Trust having such terms as set forth in
Annex I (the "Series B Capital Securities") in exchange for Series A Capital
Securities accepted for exchange in the Exchange Offer, which Series B Capital
Securities shall not bear the legends required by Section 9.2(h) unless the
Holder of such Series A Capital Securities is either (A) a broker-dealer who
purchased such Series A Capital Securities directly from the Trust for resale
pursuant to Rule 144A or any other available exemption under the Securities Act,
(B) a Person participating in the distribution of the Series A Capital
Securities or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Trust. The Trust shall issue no securities or other interests in the assets of
the Trust other than the Securities.
(b) 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.
(c) 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 interests in the assets of the Trust.
(d) Every Person, by virtue of having become a Holder or a Capital
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.
SECTION 7.2. Execution and Authentication.
----------------------------
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may
32
<PAGE>
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of the Declaration any such
person was not such an Administrative Trustee.
(b) One Administrative Trustee shall sign the Capital Securities for
the Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Capital Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Capital Security has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Capital Securities for
original issue. The aggregate number of Capital Securities outstanding at any
time shall not exceed the number set forth in the Terms in Annex I hereto except
as provided in Section 7.7.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Capital Securities. An authenticating agent may
authenticate Capital Securities 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.
SECTION 7.3. Form and Dating.
---------------
The Capital Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Declaration.
Certificates representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by their execution thereof. The
Securities may have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Trust). The Trust at the direction of the Sponsor shall furnish any such
legend not contained in Exhibit A-1 to the Property Trustee in writing. Each
Capital Security shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and
to the extent applicable, the Property Trustee and the Sponsor, by their
execution and delivery of this Declaration, expressly agree to such terms and
provisions and to be bound thereby.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 14 A or offered and sold outside of the United States to non-
U.S. persons in offshore transactions in reliance on Regulation S, as provided
in the Purchase Agreement, shall be issued in the form of one or more, permanent
global securities in definitive, fully registered form without distribution
coupons with the global legend and the applicable Restricted Securities
33
<PAGE>
Legend set forth in Exhibit A-1 hereto (respectively, a "Rule 144A Global
Capital Security" or "Regulation S Global Capital Security," and each a "Global
Capital Security" and together the "Global Capital Securities"), which shall be
deposited on behalf of the purchasers of the Capital Securities represented
thereby with the Clearing Agency or with the Property Trustee, at its New York
office, as custodian for the Clearing Agency, and registered in the name of the
Clearing Agency or a nominee of the Clearing Agency, duly executed by the Trust
and authenticated by the Property Trustee as hereinafter provided. The number of
Capital Securities represented by the Rule 144A Global Capital Security and the
Regulation S Global Capital Security may from time to time be increased or
decreased by adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to the
---------------------
Rule 144A Global Capital Securities, Regulation S Global Capital Securities and
such other Capital Securities in global form as may be authorized by the Trust
to be deposited with or on behalf of the Clearing Agency.
The Trust shall execute and the Property Trustee shall, in accordance
with this Section 7.3, authenticate and make available for delivery initially
one or more Rule 144A Global Capital Securities and one or more Regulation S
Global Capital Securities that (i) shall be registered in the name of Cede & Co.
or other nominee of such Clearing Agency and (ii) shall be delivered by the
Trustee to such Clearing Agency or pursuant to such Clearing Agency's written
instructions or held by the Property Trustee as custodian for the Clearing
Agency.
Clearing Agency Participants shall have no rights under this
Declaration with respect to any Rule 144A Global Capital Security or any
Regulation S Global Capital Security held on their behalf by the Clearing Agency
or by the Property Trustee as the custodian of the Clearing Agency or under such
Rule 144A Global Capital Security or such Regulation S Global Capital Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Rule 144A Global Capital Security or such Regulation S Global Capital Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Property Trustee or any agent of the Trust or the
Property Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Clearing Agency or impair, as between the
Clearing Agency and its Clearing Agency Participants, the operation of customary
practices of such Clearing Agency governing the exercise of the rights of a
holder of a beneficial interest in any Global Capital Security.
(c) Definitive Capital Securities. Except as provided in Section 7.9,
-----------------------------
Capital Security Beneficial Owners will not be entitled to receive physical
delivery of certificated Capital Securities ("Definitive Capital Securities").
Purchasers of Securities who are "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and did not purchase
Capital Securities in reliance on Regulation S will receive Capital Securities
in the form of individual certificates in definitive, fully registered form
without distribution coupons and with the applicable Restricted Securities
Legend set forth in Exhibit A-1 hereto ("Restricted Definitive Capital
Securities"); provided, however, that upon registration of transfer of such
Restricted Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Rule 144A Global Capital Security has
previously been exchanged, be
34
<PAGE>
exchanged for an interest in a Rule 144A Global Capital Security pursuant to the
provisions of Section 9.2. Restricted Definitive Capital Securities will bear
the applicable Restricted Securities Legend set forth on Exhibit A-1 unless
removed in accordance with this Section 7.3 or Section 9.2.
SECTION 7.4. Registrar, Paying Agent and Exchange Agent.
------------------------------------------
The Trust shall maintain in the Borough of Manhattan, The City of New
York, (i) an office or agency where Capital Securities may be presented for
registration of transfer ("Registrar"), (ii) an office or agency where Capital
Securities may be presented for payment ("Paying Agent") and (iii) an office or
agency where Securities may be presented for exchange ("Exchange Agent"). The
Registrar shall keep a register of the Capital Securities and of their transfer.
The Trust may appoint the Registrar, the Paying Agent and the Exchange Agent and
may appoint one or more co-registrars, one or more additional paying agents and
one or more additional exchange agents in such other locations as it shall
determine. The term "Registrar" includes any additional registrar, "Paying
Agent" includes any additional paying agent and the term "Exchange Agent"
includes any additional exchange agent. The Trust may change any Paying Agent,
Registrar, co-registrar or Exchange Agent without prior notice to any Holder.
The Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees. The Trust shall notify the
Property Trustee of the name and address of any Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as
Registrar, Paying Agent or Exchange Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar, or
Exchange Agent. The Trust shall act as Paying Agent, Registrar, co-registrar,
and Exchange Agent for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar, Paying
Agent, and Exchange Agent for the Capital Securities.
SECTION 7.5. Paying Agent To Hold Money in Trust.
-----------------------------------
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions on the Securities, and
will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6. Replacement Securities.
----------------------
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of
35
<PAGE>
the Capital Securities to the Property Trustee, the Trust shall issue and, in
the case of Capital Securities, the Property Trustee shall authenticate a
replacement Security if the Property Trustee's and the Trust's requirements, as
the case may be, are met. An indemnity bond must be provided by the Holder
which, in the judgment of the Property Trustee, is sufficient to protect the
Trustees, the Sponsor or any authenticating agent from any loss which any of
them may suffer if a Security is replaced. The Trust may charge such Holder for
its expenses in replacing a Security.
Every replacement Security is an additional beneficial interest in the
Trust.
SECTION 7.7. Outstanding Capital Securities.
------------------------------
The Capital Securities outstanding at any time are all the Capital
Securities authenticated by the Property Trustee except for those cancelled by
it, those delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Capital Security is replaced, paid or purchased pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Capital
Security is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with the terms
of this Declaration, they cease to be outstanding and Distributions on them
shall cease to accumulate.
A Capital Security does not cease to be outstanding because one of the
Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.8. Capital Securities in Treasury.
------------------------------
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be fully
protected in relying on any such direction, waiver or consent, only Securities
which a Responsible Officer of the Property Trustee actually knows are so owned
shall be so disregarded.
SECTION 7.9. Temporary Securities.
--------------------
(a) Until definitive Securities are ready for delivery, the Trust may
prepare and, in the case of the Capital Securities, the Property Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Trust
considers appropriate for temporary Securities. Without unreasonable delay, the
Trust shall prepare and, in the case of the Capital Securities, the Property
Trustee shall authenticate definitive Securities in exchange for temporary
Securities.
(b) A Global Capital Security deposited with the Clearing Agency or
with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form of
definitive certificated Capital Securities only if such transfer complies with
Section 9.2 and (i) the Clearing Agency notifies the Company that it is
unwilling or unable to continue as Clearing Agency for such Global Capital
36
<PAGE>
Security or if at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act and a clearing agency is not appointed by the
Sponsor within 90 days of such notice, (ii) a Default or an Event of Default has
occurred and is continuing or (iii) the Trust at its sole discretion elects to
cause the issuance of definitive certificated Capital Securities.
(c) Any Global Capital Security that is transferable to the
beneficial owners thereof in the form of definitive certificated Capital
Securities pursuant to this Section 7.9 shall be surrendered by the Clearing
Agency to the Property Trustee located in the Borough of Manhattan, The City of
New York, to be so transferred, in whole or from time to time in part, without
charge, and the Property Trustee shall authenticate and make available for
delivery, upon such transfer of each portion of such Global Capital Security, an
equal aggregate liquidation amount of Securities of authorized denominations in
the form of certificated Capital Securities. Any portion of a Global Capital
Security transferred pursuant to this Section shall be registered in such names
as the Clearing Agency shall direct. Any Capital Security in the form of
definitive certificated Capital Securities delivered in exchange for an interest
in the Restricted Capital Security in global form shall, except as otherwise
provided by Sections 7.3 and 9.2, bear the applicable Restricted Securities
Legend set forth in Exhibit A-1 hereto.
(d) Subject to the provisions of Section 7.9(c), the Holder of a
Global Capital Security may grant proxies and otherwise authorize any Person,
including Clearing Agency Participants and Persons that may hold interests
through Clearing Agency Participants, to take any action which such Holder is
entitled to take under this Declaration or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 7.9(b), the Trust will promptly make available to the Property Trustee a
reasonable supply of certificated Capital Securities in fully registered form
without distribution coupons.
SECTION 7.10. Cancellation.
------------
The Trust at any time may deliver Capital Securities to the Property
Trustee for cancellation. The Registrar, Paying Agent and Exchange Agent shall
forward to the Property Trustee any Capital Securities surrendered to them for
registration of transfer, redemption, exchange or payment. The Property Trustee
shall promptly cancel all Capital Securities, surrendered for registration of
transfer, redemption, exchange, payment, replacement or cancellation and shall
dispose of cancelled Capital Securities in its customary manner, provided that
the Property Trustee shall not be obligated to destroy Capital Securities. The
Trust may not issue new Capital Securities to replace Capital Securities that it
has paid or that have been delivered to the Property Trustee for cancellation or
that any Holder has exchanged.
SECTION 7.11. CUSIP Numbers.
-------------
The Trust in issuing the Capital Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of Capital
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Capital
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 Capital
Securities, and any such
37
<PAGE>
redemption shall not be affected by any defect in or omission of such numbers.
The Sponsor will promptly notify the Property Trustee after it becomes aware of
any change in the CUSIP numbers.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust.
--------------------
(a) The Trust shall automatically terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor; or the
revocation of the Sponsor's charter and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iii) following the distribution of a Like Amount of the
Debentures to the Holders upon the liquidation of the Trust, Debentures
having a principal amount equal to the liquidation amount of the Trust
Securities of the Holder to whom such Debentures are distributed, provided
that, the Property Trustee has received written notice from the Sponsor
directing the Property Trustee to terminate the Trust (which direction is
optional, and except as otherwise expressly provided below, within the
discretion of the Sponsor) and provided, further, that such direction and
such distribution is conditioned on (i) the receipt by the Sponsor or the
Trust, as the case requires, of any required regulatory approval (including
without limitation any required approval of the Federal Reserve Board) and
(ii) the Administrative Trustees' receipt of an opinion of an independent
tax counsel experienced in such matters (a "No Recognition Opinion"), which
opinion may rely on published rulings of the Internal Revenue Service, to
the effect that the Holders will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the
Trust and the distribution of Debentures;
(iv) upon the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(vi) upon the repayment of the Debentures or at such time as no
Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Administrative Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
38
<PAGE>
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. 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. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Capital Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration. Any transfer or purported transfer of any
security not made in accordance with this Declaration shall be null and void.
(c) The Sponsor may not transfer the Common Securities other than a
transfer in connection with a consolidation or merger of the Sponsor into
another Person, or any conveyance, transfer or lease by the Sponsor of its
properties and assets substantially as an entirety to any Person, pursuant to
the Indenture.
(d) The Administrative Trustees shall provide for the registration
and transfer of Securities, which will be effected without charge but only upon
payment (with such indemnity as the Administrative Trustees may require) in
respect of any tax or other governmental charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Securities, the
Administrative Trustees shall cause one or more new Securities to be issued in
the name of the designated transferee or transferees. Every Security surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Administrative Trustees duly executed by
the Holder or such Holder's attorney duly authorized in writing. Each Capital
Security surrendered for registration of transfer shall be canceled by the
Property Trustee. A transferee of a Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Security. By acceptance of a Security, each transferee shall be
deemed to have agreed to be bound by this Declaration.
SECTION 9.2. Transfer Procedures and Restrictions.
------------------------------------
(a) General. Except as otherwise provided in Section 9.2(b), if
Capital Securities are issued upon the registration of transfer, exchange or
replacement of Capital Securities bearing the Restricted Securities Legend set
forth in Exhibit A-1 hereto, or if a request is made to remove such Restricted
Securities Legend on Capital Securities, the Capital Securities so issued shall
bear the Restricted Securities Legend, or the Restricted Securities Legend shall
not be removed, as the case may be, unless there is delivered to the Trust and
the Property Trustee such evidence satisfactory to the Sponsor, which shall
include an Opinion of Counsel as may be reasonably required by the Sponsor, that
neither the legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof are made pursuant to an exception from
39
<PAGE>
the registration requirements of the Securities Act or, with respect to
Restricted Definitive Capital Securities, that such Securities are not
"restricted" within the meaning of Rule 144. Upon provision of such satisfactory
evidence, the Property Trustee, at the written direction of the Trust, shall
authenticate and deliver Capital Securities that do not bear the legend.
(b) Transfers After Effectiveness of a Registration Statement. After
the effectiveness of a Registration Statement with respect to any Capital
Securities, and except as otherwise required by applicable laws and regulations
or currently prevailing interpretations of the staff of the Commission, all
requirements pertaining to legends on such Capital Securities will cease to
apply, and beneficial interests in a Capital Security in global form without
legends will be available to transferees of such Capital Securities, upon
exchange of the transferring Holder's Restricted Definitive Capital Security or
directions to transfer such Holder's beneficial interest in the Rule 144A Global
Capital Security or the Regulation S Global Capital Security, as the case may
be. No such transfer or exchange of a Restricted Definitive Capital Security or
of an interest in the Rule 144A Global Capital Security or the Regulation S
Global Capital Security shall be effective unless the transferor delivers to the
Trust a certificate in a form substantially similar to that attached hereto as
the "Form of Assignment" in Exhibit A-1. Except in connection with the Exchange
Offer as provided in Section 9.2(l), after the effectiveness of a Registration
Statement, the Trust shall issue and the Property Trustee, upon a written order
of the Trust signed by one Administrative Trustee, shall authenticate a Capital
Security in global form without the Restricted Securities Legend (the
"Unrestricted Global Capital Security") for deposit with the Clearing Agency or
its custodian to evidence transfers of beneficial interests from the (i) Rule
144A Global Capital Security or the Regulation S Global Capital Security and
(ii) Restricted Definitive Capital Securities.
(c) Transfer and Exchange of Definitive Capital Securities. When
------------------------------------------------------
Definitive Capital Securities are presented to the Registrar or co-Registrar
(x) to register the transfer of such Definitive Capital Securities;
or
(y) to exchange such Definitive Capital Securities for an equal
number of Definitive Capital Securities,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered for
transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Administrative Trustees and the Registrar or co-registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and
(ii) in the case of Definitive Capital Securities that are
Restricted Definitive Capital Securities:
(A) if such Restricted Capital Securities are being
delivered to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such Holder to
that effect; or
40
<PAGE>
(B) if such Restricted Capital Securities are being
transferred: (i) a certification from the transferor in a form
substantially similar to that attached hereto as the "Form of
Assignment" in Exhibit A-1, and (ii) if the Trust so requests,
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
(d) Restrictions on Transfer of a Definitive Capital Security for a
---------------------------------------------------------------
Beneficial Interest in a Global Capital Security. A Definitive Capital Security
- ------------------------------------------------
may not be exchanged for a beneficial interest in a Global Capital Security
except upon satisfaction of the requirements set forth below. Upon receipt by
the Property Trustee of a Definitive Capital Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Property Trustee and the Administrative Trustees, together with:
(i) if such Definitive Capital Security is a Restricted Capital
Security, certification (in a form substantially similar to that attached
hereto as the "Form of Assignment" in Exhibit A-1), provided, however, that
such Definitive Capital Security may only be exchanged for an interest in a
Regulation S Global Security where such Definitive Capital Security is
being transferred pursuant to Regulation S or Rule 144 (if available); and
(ii) whether or not such Definitive Capital Security is a
Restricted Capital Security, written instructions directing the Property
Trustee to make, or to direct the Clearing Agency to make, an adjustment on
its books and records with respect to the appropriate Global Capital
Security to reflect an increase in the number of the Capital Securities
represented by such Global Capital Security,
then the Property Trustee shall cancel such Definitive Capital Security and
cause, or direct the Clearing Agency to cause, the aggregate number of Capital
Securities represented by the appropriate Global Capital Security to be
increased accordingly. If no Global Capital Securities are then outstanding, the
Trust shall issue and the Property Trustee shall authenticate, upon written
order of any Administrative Trustee, an appropriate number of Capital Securities
in global form.
(e) Transfer and Exchange of Global Capital Securities. Subject to
--------------------------------------------------
Section 9.2(f), the transfer and exchange of Global Capital Securities or
beneficial interests therein shall be effected through the Clearing Agency, in
accordance with this Declaration (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Clearing Agency therefor.
(f) Transfer of a Beneficial Interest in a Global Capital Security
--------------------------------------------------------------
for a Definitive Capital Security.
- ---------------------------------
(i) Any Person having a beneficial interest in a Global Capital
Security may upon request, but only upon 20 days prior notice to the
Property Trustee, and if accompanied by the information specified below,
exchange such beneficial interest for a Definitive Capital Security
representing the same number of Capital Securities. Upon receipt by the
Property Trustee from the Clearing Agency or its nominee on behalf of any
41
<PAGE>
Person having a beneficial interest in a Global Capital Security of written
instructions or such other form of instructions as is customary for the
Clearing Agency or the Person designated by the Clearing Agency as having
such a beneficial interest in a Restricted Capital Security and a
certification from the transferor (in a form substantially similar to that
attached hereto as the "Form of Assignment" in Exhibit A-1), which may be
submitted by facsimile, then the Property Trustee will cause the aggregate
number of Capital Securities represented by Global Capital Securities to be
reduced on its books and records and, following such reduction, the Trust
will execute and the Property Trustee will authenticate and make available
for delivery to the transferee a Definitive Capital Security.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this Section
9.2(f) shall be registered in such names and in such authorized
denominations as the Clearing Agency, pursuant to instructions from its
Clearing Agency Participants or indirect participants or otherwise, shall
instruct the Property Trustee in writing. The Property Trustee shall
deliver such Capital Securities to the Persons in whose names such Capital
Securities are so registered in accordance with such instructions of the
Clearing Agency.
(g) Restrictions on Transfer and Exchange of Global Capital
-------------------------------------------------------
Securities. Notwithstanding any other provisions of this Declaration (other than
- ----------
the provisions set forth in subsection (b) of Section 7.9), a Global Capital
Security may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or another nominee of the Clearing Agency or by
the Clearing Agency or any such nominee to a successor Clearing Agency or a
nominee of such successor Clearing Agency.
Prior to the expiration of the restricted period, as contemplated by
Regulation S, beneficial interests in the Regulation S Global Capital Security
may be exchanged for beneficial interests in the Rule 144A Global Capital
Security only if such exchange occurs in connection with a transfer of the
Capital Securities pursuant to Rule 144A and the transferor first delivers to
the Property Trustee a written certificate (in a form substantially similar to
that attached hereto as the "Form of Assignment" in Exhibit A-1) to the effect
that the Capital Securities are being transferred to a Person who the transferor
reasonably believes is a QIB, purchasing for its own account or the account of a
QIB in a transaction meeting the requirements of Rule 144A and in accordance
with all applicable securities laws of the states of the United States and other
jurisdictions.
Beneficial interests in the Rule 144A Global Capital Security may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Capital Security, whether before or after the expiration of
such restricted period, as contemplated by Regulation S, only if the transferor
first delivers to the Property Trustee a written certificate (in a form
substantially similar to that attached hereto as the "Form of Assignment" in
Exhibit A-1) to the effect that such transfer is being made in accordance with
Rule 903 or Rule 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of such restricted period, the
interest transferred will be held immediately thereafter through the Euroclear
System or Cedel Bank, societe anonyme.
42
<PAGE>
(h) Legend.
------
(i) Except as permitted by the following paragraph (ii), each
Capital Security certificate evidencing the Global Capital Securities and
the Definitive Capital Securities (and all Capital Securities issued in
exchange therefor or substitution thereof) shall bear a legend (the
"Restricted Securities Legend") in substantially the following form, as
applicable :
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF IS DEEMED TO HAVE AGREED TO BE BOUND BY THE
PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT AMONG
FIRST COMMONWEALTH FINANCIAL CORPORATION (THE
"CORPORATION"), FIRST COMMONWEALTH CAPITAL TRUST I (THE
"TRUST") AND KEEFE, BRUYETTE & WOODS, INC. DATED
SEPTEMBER 8, 1999 (THE "REGISTRATION RIGHTS
AGREEMENT"). FIRST COMMONWEALTH WILL PROVIDE A COPY OF
THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT
CHARGE UPON WRITTEN REQUEST TO THE TRUST AT ITS
PRINCIPAL PLACE OF BUSINESS.
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS
CAPITAL SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE
LAST DATE ON WHICH THE CORPORATION OR ANY "AFFILIATE"
OF THE CORPORATION WAS THE OWNER OF THIS CAPITAL
SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY)
ONLY (A) TO THE CORPORATION, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER
43
<PAGE>
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
RIGHT OF THE TRUST AND THE CORPORATION PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO
THE TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN
THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
SEPTEMBER 2, 1999. SUCH HOLDER FURTHER AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS CAPITAL
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT EITHER
(i) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR (ii) THE ACQUISITION AND HOLDING
OF THIS CAPITAL SECURITY BY IT IS NOT PROHIBITED BY
EITHER SECTION 406 OF ERISA OR SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF
44
<PAGE>
1986, AS AMENDED, OR IS EXEMPT FROM ANY SUCH PROHIBITION.
THE CAPITAL SECURITIES WILL BE ISSUED AND, UNTIL
REGISTERED UNDER THE SECURITIES ACT, MAY BE TRANSFERRED
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS
THAN $100,000 (100 CAPITAL SECURITIES). ANY ATTEMPTED
TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
and in the case of the Regulation S Global Capital Security:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT IS AVAILABLE.
(ii) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global Capital
Security) pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the Securities Act after such
registration statement ceases to be effective:
(A) in the case of any Restricted Capital Security that is a
Definitive Capital Security, the Registrar shall permit the Holder
thereof to exchange such Restricted Capital Security for a Definitive
Capital Security that does not bear the Restricted Securities Legend
and rescind any restriction on the transfer of such Restricted Capital
Security; and
(B) in the case of any Restricted Capital Security that is
represented by a Global Capital Security, the Registrar shall permit
the Holder of such Global Capital Security to exchange such Global
Capital Security for another Global Capital Security that does not
bear the Restricted Securities Legend.
(i) Cancellation or Adjustment of Global Capital Security. At such
-----------------------------------------------------
time as all beneficial interests in a Global Capital Security have either been
exchanged for Definitive
45
<PAGE>
Capital Securities to the extent permitted by this Declaration or redeemed,
repurchased or canceled in accordance with the terms of this Declaration, such
Global Capital Security shall be returned to the Property Trustee for
cancellation by the Property Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Capital Security is exchanged for Definitive
Capital Securities, Capital Securities represented by such Global Capital
Security shall be reduced and an adjustment shall be made on the books and
records of the Property Trustee (if it is then the custodian for such Global
Capital Security) with respect to such Global Capital Security, by the Property
Trustee or any Securities custodian, to reflect such reduction.
(j) Obligations with Respect to Transfers and Exchanges of Capital
--------------------------------------------------------------
Securities.
- ----------
(i) To permit registrations of transfers and exchanges, the
Trust shall execute and the Property Trustee shall authenticate Definitive
Capital Securities and Global Capital Securities at the Registrar's or co-
Registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust or
the Sponsor may require) in respect of any tax or other governmental charge
that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) Capital Securities during a
period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption or any notice of selection of Capital
Securities for redemption and ending at the close of business on the day of
such mailing; or (b) any Capital Security so selected for redemption in
whole or in part, except the unredeemed portion of any Capital Security
being redeemed in part.
(iv) Prior to the due presentation for registrations of transfer
of any Capital Security, the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the Person in whose
name a Capital Security is registered as the absolute owner of such Capital
Security for the purpose of receiving Distributions on such Capital
Security (subject to Section 2(c) of Annex I) and for all other purposes
whatsoever, and none of the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) All Capital Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Declaration shall
evidence the same security and shall be entitled to the same benefits under
this Declaration as the Capital Securities surrendered upon such
registration of transfer or exchange.
(k) No Obligation of the Property Trustee.
-------------------------------------
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Capital Security, a Clearing
Agency Participant in the Clearing Agency or other Person with respect to
the accuracy of the records of the Clearing Agency or its nominee or of any
Clearing Agency Participant thereof, with respect to any ownership interest
in the Capital Securities or with respect to the delivery to any Clearing
Agency Participant, beneficial owner or other Person (other than the
46
<PAGE>
Clearing Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Capital Securities.
All notices and communications to be given to the Holders and all payments
to be made to Holders under the Capital Securities shall be given or made
only to or upon the order of the registered Holders (which shall be the
Clearing Agency or its nominee in the case of a Global Capital Security).
The rights of Capital Security Beneficial Owners shall be exercised only
through the Clearing Agency subject to the applicable rules and procedures
of the Clearing Agency. The Property Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the
Clearing Agency or any agent thereof with respect to its Participants and
any Capital Security Beneficial Owners.
(ii) The Property Trustee and Registrar shall have no obligation
or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration or under applicable
law with respect to any transfer of any interest in any Capital Security
(including any transfers between or among Clearing Agency Participants or
Capital Security Beneficial Owners) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Declaration, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
(l) Exchange of Series A Capital Securities for Series B Capital
------------------------------------------------------------
Securities. The Series A Capital Securities may be exchanged for Series B
- ----------
Securities pursuant to the terms of the Exchange Offer. The Trustee shall make
the exchange as follows:
The Sponsor shall present the Property Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Capital Securities, the
transactions contemplated by the Exchange Offer have been consummated;
and
(B) the number of Series A Capital Securities properly tendered
in the Exchange Offer that are represented by a Global Capital
Security and the number of Series A Capital Securities properly
tendered in the Exchange Offer that are represented by Definitive
Capital Securities, the name of each Holder of such Definitive Capital
Securities, the liquidation amount of Capital Securities properly
tendered in the Exchange Offer by each such Holder and the name and
address to which Definitive Capital Securities for Series B Capital
Securities shall be registered and sent for each such Holder.
The Property Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Capital
Securities have been registered under Section 5 of the Securities Act and the
Indenture has been qualified under the Trust Indenture Act and (y) with respect
to the matters set forth in Section 3(o) of the Registration Rights Agreement
and (iii) a Company Order, shall authenticate (A) a Global Capital Security for
Series B Capital Securities in aggregate liquidation amount equal to the
aggregate liquidation amount of Series A Capital Securities represented by a
Global Capital Security indicated in such Officers'
47
<PAGE>
Certificate as having been properly tendered and (B) Definitive Capital
Securities representing Series B Capital Securities registered in the names of,
and in the liquidation amounts indicated in such Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Series A Capital Securities shall have been properly tendered and
not withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security for Series A Capital Securities indicating the reduction in the
number and aggregate liquidation amount represented thereby as a result of the
Exchange Offer.
The Trust shall deliver such Definitive Capital Securities for Series
B Capital Securities to the Holders thereof as indicated in such Officers'
Certificate.
(m) Minimum Transfers. Capital Securities may only be transferred in
-----------------
minimum blocks of $100,000 aggregate liquidation amount (and integrals of $1,000
above $100,000) until such Capital Securities are registered pursuant to an
effective registration statement filed under the Securities Act. Any transfer
of Capital Securities in violation of this Section having an aggregate
liquidation amount of less than $100,000 will be void. After the Capital
Securities are registered pursuant to an effective registration statement filed
under the Securities Act, the Capital Securities may be transferred in blocks of
$1,000 aggregate liquidation amount (one Capital Security) or integral multiples
thereof.
SECTION 9.3. Book Entry Interests.
--------------------
Global Capital Securities shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the Clearing
Agency, and no Capital Security Beneficial Owner will receive a Definitive
Capital Security certificate representing such Capital Security Beneficial
Owner's interests in such Global Capital Securities, except as provided in
Section 9.2 and 7.9. Unless and until definitive, fully registered Capital
Securities certificates have been issued to the Capital Security Beneficial
Owners pursuant to Section 9.2 and 7.9:
(a) the provisions of this Section 9.3 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Capital Securities and receiving approvals, votes or
consents hereunder) as the Holder of the Capital Securities and the sole holder
of the Global Certificates and shall have no obligation to the Capital Security
Beneficial Owners;
(c) to the extent that the provisions of this Section 9.3 conflict
with any other provisions of this Declaration, the provisions of this Section
9.3 shall control; and
(d) the rights of the Capital Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Capital Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants and the
Clearing Agency shall receive and transmit payments of
48
<PAGE>
Distributions on the Global Certificates to such Clearing Agency Participants.
DTC will make book entry transfers among the Clearing Agency Participants.
SECTION 9.4. Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Capital Security
Holders is required under this Declaration, the Trustees shall give all such
notices and communications specified herein to be given to the Holders of Global
Capital Securities to the Clearing Agency, and shall have no notice obligations
to the Capital Security Beneficial Owners.
SECTION 9.5. Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the Administrative
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability.
---------
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution or termination of the Trust or otherwise.
(b) The Sponsor 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 (S) 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2. 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
49
<PAGE>
such Indemnified Person's gross negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
SECTION 10.3. Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (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 Persons and any Indemnified Persons; 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
50
<PAGE>
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4. Indemnification.
---------------
(a) (i) The Sponsor shall indemnify, to the full extent permitted
by law, any Company 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 Company Indemnified Person against
expenses (including reasonable attorneys' fees and expenses), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
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 Sponsor shall indemnify, to the full extent permitted
by law, any Company 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 Company Indemnified Person
against expenses (including reasonable attorneys' fees and expenses)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company 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) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
51
<PAGE>
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor
only as authorized in the specific case upon a determination that
indemnification of the Company 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 Administrative Trustees by a majority vote of a quorum consisting of
such Administrative Trustees who 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 Administrative Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including reasonable attorneys' fees and
expenses) incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Sponsor in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority vote of a
quorum of disinterested Administrative Trustees, (ii) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative 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 Administrative Trustees, counsel or the
Common Security Holder at the time such determination is made, such Company
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 Company 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
Administrative Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4(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 Sponsor
or Capital Security Holders of the Trust or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
such office. All rights to indemnification under this Section 10.4(a) shall
be deemed to be provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time while this
Section 10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability
52
<PAGE>
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Sponsor would have the power
to indemnify him against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(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 10.4(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.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a Person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a Person.
(b) The Sponsor 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 and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) 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 10.4(b) shall survive the resignation or
removal of the Property Trustee or the Delaware Trustee, as the case may be, and
the termination of this Declaration.
SECTION 10.5. Outside Businesses.
------------------
The Sponsor, the Delaware Trustee and the Property Trustee (subject to
Section 5.3(c)) may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. None of 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 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. The Delaware Trustee and the
Property Trustee may engage or
53
<PAGE>
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
SECTION 10.6. Compensation; Fees.
------------------
The Sponsor agrees:
(a) to pay to the Trustees from time to time mutually agreed upon
reasonable compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 10.6 shall survive the dissolution of
the Trust and the termination of this Declaration and the removal or resignation
of any Trustee.
No Trustee may claim any lien or charge on any property of the Trust
as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1. 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 11.2. Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the
Administrative 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 United States 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 Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders, within 90 days after the end of each Fiscal
Year of the Trust, annual financial
54
<PAGE>
statements of the Trust, including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income or loss;
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders, any 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 Administrative Trustees shall endeavor to
deliver all such information statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative 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 Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3. 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 Trustee Account and no other funds of the Trust shall be deposited
in the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Administrative Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Trustee Account.
SECTION 11.4. Withholding.
-----------
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law,
including but not limited to the withholding pursuant to the Pennsylvania
Corporate Loans Tax referred to in Section 6.1. 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 Administrative 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.
55
<PAGE>
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. 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:
(i) the Administrative Trustees (or if there are more than
two Administrative Trustees a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless 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
(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),
provided, however, that neither the Property Trustee nor the Delaware Trustee
shall be required to sign any such amendment which adversely affects the rights,
powers, duties, obligations or immunities of the Property Trustee or the
Delaware Trustee, as the case may be, and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor
trust;
(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) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of
56
<PAGE>
Securities may be effected only with such additional requirements as may be set
forth in the terms of such Securities;
(d) Section 9.1(d) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article Four shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities and;
(f) The rights of the Holders of the Common Securities under Article
Five 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; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity, correct or supplement any provision
in this Declaration that may be inconsistent with any other provision of
this Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration which shall not be inconsistent
with the other provisions of the Declaration;
(ii) to modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure that the Trust
will be classified for United States federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to ensure
that the Trust will not be required to register as an Investment Company
under the Investment Company Act;
(iii) to modify, eliminate or add any provisions of the
Declaration to such extent as shall be necessary to enable the Trust and
the Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement; or
(iv) to make any changes that would provide any additional
rights and benefits to Holders or that does not adversely affect the legal
rights herein of any such Holders;
provided, however, that in the case of clauses (i) and (iii), such action shall
not adversely affect in any material respect the interests of the Holders, and
any amendments of this Declaration shall become effective when notice thereof is
given to the Holders.
SECTION 12.2. Meetings of the Holders; Action by Written Consent.
--------------------------------------------------
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Administrative 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 Capital
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 10% in
57
<PAGE>
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Administrative Trustees one or more notices in 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
calling a meeting shall specify in writing the Security Certificates held by the
Holders 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 seven days
and not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders is permitted or required under this
Declaration or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders. Any action that may be
taken at a meeting of the Holders of Securities may be taken without a
meeting 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 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 entitled to vote who have
not consented in writing. The Administrative 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 Administrative Trustees;
(ii) each Holder may authorize any Person to act for it by
proxy on all matters in which a Holder 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 it. Except
as otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the
Administrative Trustees or by such other Person that the Administrative
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 Capital Securities are then listed or
trading, otherwise provides, the Administrative Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders, 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 consent without a meeting, the establishment of
a record date, quorum requirements,
58
<PAGE>
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of 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 New York banking corporation with trust
powers and authority under the laws of the State of New York to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) The execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee;
(d) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration;
and
(e) The Property Trustee satisfies the qualifications set forth in
Section 5.3(a).
SECTION 13.2. Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a duly organized Delaware banking
corporation, validly existing and in good standing under the laws of the State
of Delaware, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration;
59
<PAGE>
(b) The execution, delivery and performance by the Delaware Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. This Declaration has been duly executed and
delivered by the Delaware Trustee and 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);
(c) No consent, approval or authorization of, or registration with or
notice to, any federal banking authority is required for the execution, delivery
or performance by the Delaware Trustee of this Declaration; and
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware.
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1. Registration Rights Agreement.
-----------------------------
The Holders of the Capital Securities, the Debentures and the Capital
Securities Guarantee are entitled to the benefits of the Registration Rights
Agreement.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. 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 first class mail, as follows:
(a) if given to the Trust or any Administrative Trustee, in care of
the Administrative Trustees at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the Holders and the
Property Trustee):
First Commonwealth Capital Trust I
c/o First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: John Dolan, Chief Financial Officer
Telecopy: (724) 349-6427
(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 Holders and the other Trustees):
60
<PAGE>
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration Department
Telecopy: (302) 984-4903
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders and the other Trustees):
The Chase Manhattan Bank
450 West 33/rd/ Street
15/th/ Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telecopy: (212) 946-8154
(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 to the Trust and the Property Trustee):
First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: Chief Financial Officer
Telecopy: (724) 349-6427
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 15.2. 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
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
61
<PAGE>
SECTION 15.3. Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 15.4. 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 15.5. 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.
SECTION 15.6. 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 15.7. 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.
62
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ John J. Dolan
--------------------------------------
John J. Dolan, as Administrative Trustee
/s/ R. John Previte
--------------------------------------
R. John Previte, as Administrative Trustee
/s/ Gerard M. Thomchick
--------------------------------------
Gerard M. Thomchick, as Administrative Trustee
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee
By: /s/ Joanne Adamis
----------------------------------
Name: J. Adamis
Title: Assistant Vice President
THE CHASE MANHATTAN BANK
as Property Trustee
By: /s/ Joanne Adamis
-----------------------------------
Name: J. Adamis
Title: Assistant Vice President
FIRST COMMONWEALTH FINANCIAL
CORPORATION,
as Sponsor
By: /s/ John J. Dolan
-----------------------------------
Name: John J. Dolan
Title: Senior Vice President & Chief
Financial Officer
63
<PAGE>
ANNEX I
TERMS OF
9.50% SERIES A/SERIES B CAPITAL SECURITIES
9.50% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of September 8, 1999 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the Offering
Memorandum referred to below in Section 2(c) of this Annex I):
1. Designation and Number.
----------------------
(a) Capital Securities. 35,000 Series A Capital Securities of the
------------------
Trust and 35,000 Series B Capital Securities of the Trust, each series with an
aggregate liquidation amount with respect to the assets of the Trust of Thirty
Five Million dollars ($35,000,000) and each with a liquidation amount with
respect to the assets of the Trust of $1,000 per Security, are hereby designated
for the purposes of identification only as "9.50% Series A Capital Securities"
and "9.50% Series B Capital Securities", respectively (collectively, the
"Capital Securities"). 25,000 of the Series A Capital Securities are issuable
at the Initial Closing Time and 10,000 of the Series A Capital Securities are
issuable at the Second Closing Time. The certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Capital Securities are listed.
(b) Common Securities. 1,083 Common Securities of the Trust with an
-----------------
aggregate liquidation amount with respect to the assets of the Trust of One
Million Eighty Three Thousand dollars ($1,083,000) and a liquidation amount with
respect to the assets of the Trust of $1,000 per security, are hereby designated
for the purposes of identification only as "9.50% Common Securities" (the
"Common Securities"). 774 of the Common Securities are issuable at the Initial
Closing Time and 309 of the Common Securities are issuable at the Second Closing
Time. The certificates evidencing the Common Securities shall be substantially
in the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions.
-------------
(a) Distributions payable on each Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the liquidation amount of $1,000 per
Security (the "Liquidation Amount"), such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one semi-annual period will bear additional distributions
thereon compounded semi-annually at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in
I-1
<PAGE>
the Registration Rights Agreement) with respect to the Debentures. The term
"Distributions," as used herein, includes distributions of any such
distributions and Liquidated Damages payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for or, if no Distributions have been paid or duly provided for,
from September 8, 1999, and will be payable semi-annually in arrears on March 1
and September 1 of each year, commencing on March 1, 2000 (each, a "Distribution
Date"), except as otherwise described below. Distributions will be computed on
the basis of a 360-day year consisting of twelve 30-day months and for any
period less than a full calendar month on the basis of the actual number of days
elapsed in such month. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
at any time and from time to time on the Debentures for a period not exceeding
10 consecutive semi-annual periods, including the first such semi-annual period
during such extension period (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a day other than an Interest
Payment Date on the Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, Distributions will continue to accumulate with
additional Distributions thereon (to the extent permitted by applicable law but
not at a rate greater than the rate at which interest is then accruing on the
Debentures) at the Coupon Rate compounded semi-annually during any such
Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions within such Extension Period, may not
exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the fifteenth
day of the month which precedes the month in which the relevant Distribution
Date occurs, which Distribution Dates correspond to the interest payment dates
on the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Global
Capital Securities will be made as described under the heading "Description of
the Capital Securities - Payment on the Capital Securities" in the Offering
Memorandum dated September 2, 1999, of the Debenture Issuer and the Trust
relating to the Securities and the Debentures. Payments in respect of Capital
Securities held in certificated form will be made by check mailed to the Holder
entitled thereto. The relevant record dates for the Common Securities shall be
the same as the record dates for the Capital Securities. Distributions payable
on any Securities that are not punctually paid on any Distribution Date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Holder on the relevant record date,
and such defaulted Distributions will instead be payable to the Person in whose
I-2
<PAGE>
name such Securities are registered on the special record date or other
specified date determined in accordance with the Indenture. 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), with the same force and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined in Section 8 hereof) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any termination of the Trust or the Sponsor otherwise
gives notice of its election to liquidate the Trust pursuant to Section
8.1(a)(iii) of the Declaration, the Trust shall be liquidated by the
Administrative Trustees as expeditiously as the Administrative Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to the Holders a Like
Amount (as defined below) of the Debentures, in which event such Holders will be
entitled to receive out of the assets of the Trust legally available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the aggregate of the
liquidation amount of $1,000 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the principal amount
of Debentures to be paid in accordance with their terms and (ii) with respect to
a distribution of Debentures upon liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Securities of the Holder
to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets on hand legally
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.
4. Redemption and Distribution.
---------------------------
(a) Upon the repayment of the Debentures in whole or in part, at
maturity or upon early redemption (either at the option of the Debenture Issuer
or pursuant to a Special Event, as described below) (other than following the
distribution of the Debentures to the Holders), the proceeds from such repayment
shall be simultaneously applied by the Property Trustee (subject to the Property
Trustee having received notice no later than 45 days prior to such repayment) to
redeem a Like Amount of the Securities at a redemption price equal to (i) in the
case of the repayment of the Debentures at maturity, the Maturity Redemption
Price (as defined below), (ii) in the case of the optional redemption of the
Debentures upon the occurrence and continuation of a Special Event, the Special
Event Redemption Price (as defined below) and (iii) in the case of the optional
redemption of the Debentures other than as a result of the occurrence and
continuance of a Special Event, the Optional Redemption Price (as defined
I-3
<PAGE>
below). The Maturity Redemption Price, the Special Event Redemption Price and
the Optional Redemption Price are referred to collectively as the "Redemption
Price." Holders will be given not less than 30 nor more than 60 days notice of
such redemption.
(b) (i) The "Maturity Redemption Price," with respect to a redemption
of Securities, shall mean an amount equal to the principal of and accrued and
unpaid interest on the Debentures as of the maturity date thereof.
(ii) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Capital Securities will be
redeemed Pro Rata and the Capital Securities to be redeemed will be determined
as described in Section 4(f)(ii) below.
The Debenture Issuer shall have the right (subject to the conditions
in the Indenture) to elect to redeem the Debentures in whole or in part at any
time on or after September 1, 2009 (the "Initial Optional Redemption Date"),
upon not less than 30 days and not more than 60 days notice, at the Optional
Redemption Price and, simultaneous with such redemption, to cause a Like Amount
of the Securities to be redeemed by the Trust at the Optional Redemption Price
on a Pro Rata basis. "Optional Redemption Price" shall mean a price equal to the
percentage of the liquidation amount of Securities to be redeemed plus
accumulated and unpaid Distributions thereon, if any, to the date of such
redemption if redeemed during the 12-month period beginning September 1 of the
years indicated below:
<TABLE>
<CAPTION>
Year Percentage
----------------------- -----------------------
<S> <C>
2009 104.750%
2010 104.275
2011 103.800
2012 103.325
2013 102.850
2014 102.375
2015 101.900
2016 101.425
2017 100.950
2018 100.475
2019 and thereafter 100.000%
</TABLE>
(c) If at any time a Tax Event or a Regulatory Capital Event (each as
defined below, and each a "Special Event") occurs, the Debenture Issuer shall
have the right (subject to the conditions set forth in the Indenture) at any
time prior to the Initial Optional Redemption
I-4
<PAGE>
Date, upon not less than 30 nor more than 60 days notice, to redeem the
Debentures in whole, but not in part, within the 90 days following the
occurrence of such Special Event (the "90 Day Period"), and, simultaneous with
such redemption, to cause a Like Amount of the Securities to be redeemed by the
Trust at the Special Event Redemption Price on a Pro Rata basis.
"Tax Event" means the receipt by the Sponsor and the Administrative
Trustees of an opinion (a "Tax Event Opinion") of a tax counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after September 8, 1999, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Debenture Issuer on the Debentures
is not, or within 90 days of the date of such opinion, will not be, deductible
by the Debenture Issuer, in whole or in part, for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Regulatory Capital Event" shall occur at any time that the Debenture
Issuer shall have received 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 Board or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after September 8, 1999, the Capital 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 Junior Subordinated Debentures in connection with a termination of the Trust
by the Corporation shall not in and of itself constitute a Regulatory Capital
Event.
"Special Event Redemption Price" shall mean, with respect to a
redemption of Securities, a price equal to the greater of (i) 100% of the
principal of a Like Amount of Debentures to be redeemed or (ii) the sum, as
determined by a Quotation Agent (as defined in the Indenture), of the present
values of the principal amount and premium payable with respect to an optional
redemption of a Like Amount of the Debentures on the Initial Optional Redemption
Date, together with scheduled payments of interest on the Debentures from the
redemption date to and including the Initial Optional Redemption Date,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as
defined in the Indenture), plus, in either case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption.
(d) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the Capital
Securities, will receive a registered global
I-5
<PAGE>
certificate or certificates representing the Debentures to be delivered upon
such distribution and any certificates representing Securities not held by the
Clearing Agency or its nominee (or any successor Clearing Agency or its nominee)
will be deemed to represent Debentures having a principal amount equal to the
liquidation amount of such Securities and bearing accrued and unpaid interest in
an amount equal to the accumulated and unpaid distributions on such Securities
until such certificates are presented to the Administrative Trustees or their
agent for cancellation, whereupon the Debenture Issuer will issue to such
Holder, and the Debenture Trustee will authenticate, a certificate representing
such Debentures.
(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all
Securities for all semi-annual Distribution periods terminating on or before the
date of redemption.
(f) The procedure with respect to redemptions or distributions of
Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder 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 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders.
Each Redemption/Distribution Notice shall be addressed to the Holders of
Securities at the address of each such Holder appearing in the books and
records 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.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Capital Securities, it being understood that, in
respect of Capital Securities registered in the name of and held of record
by the Clearing Agency or its nominee (or any successor Clearing Agency or
its nominee) or any nominee, the distribution of the proceeds of such
redemption will be made to the Clearing Agency and disbursed by such
Clearing Agency in accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice (which notice will be irrevocable), then (A)
with respect to Capital Securities issued in book-entry form, 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 by
10:00 a.m., New York City time, on the maturity date or the date of
redemption, as the case requires, the Property Trustee will deposit
irrevocably with the Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the applicable Redemption
Price with respect to such Capital Securities
I-6
<PAGE>
and will give the Clearing Agency irrevocable instructions and authority to
pay the Redemption Price to the relevant Clearing Agency Participants, and
(B) with respect to Capital Securities issued in certificated form and
Common 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 Property Trustee will pay the
relevant Redemption Price to the Holders by check mailed to the address of
the relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the redemption
date, as applicable, Distributions will cease to accumulate on the
Securities so called for redemption and all rights of Holders so called for
redemption will cease, except the right of the Holders of such Securities
to receive the Redemption Price, but without interest on such Redemption
Price, and such Securities shall cease to be outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities will be subject to the rights of Holders
of Securities on the close of business on a regular record date in respect
of a Distribution Date occurring on or prior to such Redemption Date.
Neither the Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of (i) any Securities beginning
on the opening of business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of such mailing or
(ii) any Securities selected for redemption except the unredeemed portion of any
Security being redeemed. 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), 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 and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will continue to
accumulate 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.
(v) Redemption/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) in respect of the Capital Securities,
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) if the Global Certificates have been issued or, if Definitive
Capital Security Certificates have been issued, to the Holder thereof, and
(B) in respect of the Common Securities to the Holder thereof
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws),
provided the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its subsidiaries may at
any time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
I-7
<PAGE>
5. Voting Rights - Capital Securities.
----------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Capital Securities will
have no voting rights.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not, without, in each case, obtaining the prior approval of the
Holders of a majority in liquidation amount of all outstanding Capital
Securities, (i) direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing any trust or
power conferred on such Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.07 of the Indenture,
(iii) exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the Debentures or (iv) 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 an independent tax counsel experienced in such matters to the effect that
such modification will not cause more than an insubstantial risk that for United
States federal income tax purposes the Trust will not be classified as a grantor
trust; provided, however, that where a consent under the Indenture would require
the consent of each holder of Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior approval of each Holder of
the Capital Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Capital Securities except
by subsequent vote of such Holders. Subject to Section 2.7 of the Declaration,
the Property Trustee shall notify each Holder of Capital Securities of any
notice of default with respect to the Debentures. In addition to obtaining the
foregoing approvals of such Holders of the Capital Securities, prior to taking
any of the foregoing actions, the Trustees shall obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as a corporation for United States federal income tax
purposes on account of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or premium, if any, or interest on the Debentures on the due
date (or in the case of redemption, on the redemption date), then a Holder of
Capital Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Common Securities Holder will be subrogated to the rights of such
Holder of Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action. Except as
provided in the preceding sentences and in Section 3.8(e) of the Declaration,
the Holders of Capital Securities will not be able to exercise directly any
other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Capital Securities may be
given at a separate meeting of Holders of Capital Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrative Trustees will cause a notice of
any meeting at which Holders of Capital Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of Capital Securities. Each such notice
will include a statement
I-8
<PAGE>
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate of the Sponsor
shall not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), 6(c) and 7 or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Unless an Event of Default shall have occurred and be continuing,
any Trustee may be removed at any time by the Holder of the Common Securities.
If an Event of Default has occurred and is continuing, the Property Trustee and
the Delaware Trustee may be removed at such time by the holders of a majority in
liquidation amount of the outstanding Capital Securities. In no event will the
Holders of the Capital Securities have the right to vote to appoint, remove or
replace the Administrative Trustees, which voting rights are vested exclusively
in the Sponsor as the holder of the Common Securities. No resignation or removal
of a Trustee and no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration.
(c) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a majority in liquidation amount
of all outstanding Common Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior approval of each Holder of the Common Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Common Securities except by subsequent vote of such Holders. Subject to
Section 2.7 of the Declaration, the Property Trustee shall notify each Holder of
Common Securities of any notice of default with respect to the Debentures. In
addition to obtaining the foregoing approvals of such Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees shall
obtain an opinion of counsel experienced in such matters to
I-9
<PAGE>
the effect that the Trust will not be classified as an association taxable as a
corporation for United States federal income tax purposes on account of such
action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or premium, if any, or interest on the Debentures on the due
date (or in the case of redemption, on the redemption date), then a Holder of
Common Securities may institute a Direct Action for enforcement of payment to
such Holder of the principal of or premium, if any, or interest on a Like Amount
of Debentures on or after the respective due date specified in the Debentures.
In connection with Direct Action, the rights of the Common Securities Holder
will be subordinated to the rights of such Holder of Capital Securities to the
extent of any payment made by the Debenture Issuer to such Holder of Common
Securities in such Direct Action. Except as provided in the preceding sentences,
the Holders of Common Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures.
Any 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 in the Trust or pursuant to
written consent. The Administrative Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of any matter
upon which action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Sponsor,
the Property Trustee and the Administrative Trustees, without the consent of the
Holders of the Securities (i) to cure any ambiguity, correct or supplement any
provisions in the Declaration that may be inconsistent with any other
provisions, or to make any other provisions with respect to matters or questions
arising under the Declaration which shall not be inconsistent with the other
provisions of the Declaration, (ii) to modify, eliminate or add to any
provisions of the Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal income tax purposes
as a grantor trust at all times that any Securities are outstanding or to ensure
that the Trust will not be required to register as an "Investment Company" under
the Investment Company Act, (iii) to modify, eliminate or add any provisions of
the Declaration to such extent as shall be necessary to enable the Trust and the
Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement, or (iv) to make any changes that would provide
any additional rights and benefits to Holders or that does not adversely affect
the legal rights herein of any such Holder; provided, however, that in the case
of clauses (i) and (iii),
I-10
<PAGE>
such action shall not adversely affect in any material respect the interests of
any Holder of Securities, and any amendments of the Declaration shall become
effective when notice thereof is given to the holders of the Securities. Under
the circumstances referred to in Section 12.1(c) of the Declaration, the
Declaration may be amended by the Trustees and the Sponsor with (i) the consent
of Holders representing a majority in liquidation amount of all outstanding
Securities, and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the Trust's
exemption from status as an Investment Company under the Investment Company Act,
provided that, without the consent of each Holder of Trust Securities, the
Declaration may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
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 unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the Capital
Securities pro rata according to the aggregate liquidation amount of Capital
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Capital Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Capital Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding. In any such proration, the Trust
may make such adjustments as may be appropriate in order that only Securities in
authorized denominations shall be redeemed (subject to the minimum block
requirements of Section 9.2(m) of the Declaration).
9. Ranking.
-------
The Capital Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Declaration occurs and is continuing, no
payments in respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities shall be made
until the Holders of the Capital Securities shall be paid in full the
Distributions, Redemption Price, Liquidation Distribution and other payments to
which they are entitled at such time.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities Guarantee
and the Common Securities
I-11
<PAGE>
Guarantee, respectively, including the subordination provisions therein and to
the provisions of the Indenture.
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
I-12
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY, INSERT: THIS
CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS
CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY
THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE
CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.]
[UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.) HAS AN INTEREST HEREIN.]
IF THIS CAPITAL SECURITY IS A RESTRICTED CAPITAL SECURITY, INSERT:
[THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT AMONG
FIRST COMMONWEALTH FINANCIAL CORPORATION (THE "COMPANY"), FIRST COMMONWEALTH
CAPITAL TRUST I (THE "TRUST") AND KEEFE, BRUYETTE & WOODS, INC. DATED SEPTEMBER
8, 1999 (THE "REGISTRATION RIGHTS AGREEMENT"). FIRST COMMONWEALTH WILL PROVIDE
A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE TRUST AT ITS PRINCIPAL PLACE OF BUSINESS.
THE CAPITAL SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED,
A1-1
<PAGE>
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH FIRST COMMONWEALTH, THE
COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS CAPITAL SECURITY
(OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2),(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
RIGHT OF THE TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED SEPTEMBER 2, 1999. SUCH HOLDER FURTHER AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR (ii) THE ACQUISITION AND HOLDING OF THIS CAPITAL SECURITY
BY IT IS NOT PROHIBITED BY EITHER SECTION 406 OF ERISA OR SECTION 4975 OF THE
U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR IS EXEMPT FROM ANY SUCH
PROHIBITION.]
A1-2
<PAGE>
THE CAPITAL SECURITIES WILL BE ISSUED AND, UNTIL REGISTERED UNDER THE
SECURITIES ACT, MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF
NOT LESS THAN $100,000 (100 CAPITAL SECURITIES). ANY ATTEMPTED TRANSFER OF
CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
[IF THIS CAPITAL SECURITY IS A REGULATION S GLOBAL SECURITY, INSERT:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER TTIE SECURITIES ACT AND MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS
AVAILABLE.]
A1-3
<PAGE>
Certificate Number Number of Capital Securities
CUSIP NO. __________
Certificate Evidencing-Capital Securities
of
First Commonwealth Capital Trust I
9.50% Series __ Capital Securities
(liquidation amount $l,000 per Capital Security)
First Commonwealth Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
_____ (the "Holder") is the registered owner of [__________ securities of the
Trust]* [the number of securities of the Trust specified in Schedule A hereto]**
representing undivided beneficial interests in the assets of the Trust
designated the 9.50% Series ____ Capital Securities (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). Subject to the Declaration (as
defined below), the Capital Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Capital 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 September 8, 1999, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Capital
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Capital Securities Guarantee
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Trust 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 and to the benefits of
the Capital Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Capital Securities
as evidence of indirect beneficial ownership in the Debentures.
* Insert in Definitive Capital Securities only.
** Insert in Global Capital Securities only.
A1-4
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
______ day of ________ ___.
FIRST COMMONWEALTH CAPITAL TRUST I
By:________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-
mentioned Declaration.
Dated:
THE CHASE MANHATTAN BANK
as Property Trustee
By:_________________________________
Authorized Officer
A1-5
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the liquidation amount of $1,000 per
Capital Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually at the
Coupon Rate (to the extent permitted by applicable law). Pursuant to the
Registration Rights Agreement, in certain limited circumstances the Debenture
Issuer will be required to pay Liquidated Damages (as defined in the
Registration Rights Agreement) with respect to the Debentures. The term
"Distributions," as used herein, includes such cash distributions and any such
interest and such Liquidated Damages payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for or, if no Distributions have been paid or duly provided for,
from September 8, 1999 and will be payable semi-annually in arrears, on March 1
and September 1 of each year, commencing on March 1, 2000, except as otherwise
described below. Distributions will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period less than a full calendar
month, the number of days elapsed in such month. As long as no Event of Default
has occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 10 consecutive calendar semi-annual periods, including
the first such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall end on a day other
than an Interest Payment Date for the Debentures or shall extend beyond the
Maturity Date of the Debentures. As a consequence of such deferral,
Distributions also will be deferred. Despite such deferral, semi-annual
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law, but not at a rate exceeding the rate of interest
then accruing on the Debentures) at the Coupon Rate compounded semi-annually
during any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Debentures. Payments of accumulated Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date
preceding the end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
Subject to the Sponsor obtaining any prior regulatory approval then
required and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time terminate the Trust and, after satisfaction of any liabilities to creditors
of the Trust in accordance with applicable law, cause the Debentures to be
distributed to the holders of the Securities in liquidation of the Trust or,
simultaneous with any
A1-6
<PAGE>
redemption of the Debentures, cause a Like Amount of the Securities to be
redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Declaration.
A1-7
<PAGE>
______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:______________________________
Signature: _______________________
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee*: ________________________________
___________
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
A1-8
<PAGE>
[Include the following if the Capital Security bears a Restricted Capital
Securities Legend -
In connection with any transfer of any of the Capital Securities evidenced by
this certificate, the undersigned confirms that such Capital Securities are
being:
CHECK ONE BOX BELOW
(1) (TM) exchanged for the undersigned's own account without
transfer; or
(2) (TM) transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(3) (TM) transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(4) (TM) transferred to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act of 1933 that is acquiring the
Capital Securities for its own account, or for the account
of such an institutional "accredited investor", for
investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of
the Securities Act of 1933; or
(5) (TM) transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(6) (TM) transferred pursuant to an effective registration statement.
Unless one of the boxes is checked, the Registrar will refuse to register any of
the Capital Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; provided, however, that if box (3),
(4) or (5) is checked, the Registrar may require, prior to registering any such
transfer of the Capital Securities such legal opinions, certifications and other
information as the Trust has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act; provided, further, that (i) if
box 2 is checked, the transferee must also certify in the form attached hereto
that it is a qualified institutional buyer as defined in Rule 144A or (ii) if
box (4) is checked, the transferee must also provide to the Registrar a
Transferee Letter of Representation in the form attached to the Offering
Memorandum of the Trust dated September 2, 1999; provided, further, that after
the date that a Registration Statement has been filed and so long as such
Registration Statement continues to be effective, the Registrar may only permit
transfers for which box (6) has been checked.
_______________________________
Signature
A1-9
<PAGE>
Schedule A ***
The initial number of Capital Securities evidenced by the Certificate
to which this Schedule is attached _ (having an aggregate liquidation amount of
$___________). The notations in the following table evidence decreases and
increases in the number of Capital Securities evidenced by such Certificate.
<TABLE>
<CAPTION>
Number of Capital
Securities Remaining
Decrease in Number Increase in Number after such Decrease or
Capital Securities of Capital Securities Increase Notation by Registrar
____________________________________________________________________________________________________________
<S> <C> <C> <C>
</TABLE>
*** Append to Global Capital Securities only.
A1-10
<PAGE>
CERTIFICATE OF QUALIFIED INSTITUTIONAL BUYER
The undersigned transferee of Capital Securities hereby certifies that
(i) the undersigned is a "qualified institutional buyer" (a "QIB") as defined in
Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933, (ii) the
undersigned is aware that the transfer of the Capital Securities to the
undersigned is being made in reliance on Rule 144A and (iii) the undersigned is
acquiring the Capital Securities for its own account or for the account of
another QIB over which the undersigned exercises its sole investment discretion.
The undersigned also understands and acknowledges that the Capital
Securities have not been registered under the Securities Act or any other
applicable securities law, are being offered for resale in transactions not
requiring registration under the Securities Act and may not be offered, sold,
pledged or otherwise transferred except in compliance with the registration
requirements of the Securities Act or any other applicable securities laws,
pursuant to an exemption therefrom or in a transaction not subject thereto and,
in each case, in compliance with the terms of the Capital Securities and the
terms of the Amended and Restated Declaration of Trust of First Commonwealth
Capital Trust I, dated as of September 8, 1999, as the same may be amended from
time to time.
_____________________________
Signature
A1-11
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW.
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
First Commonwealth Capital Trust I
9.50% Common Securities
(liquidation amount $1,000 per Common Security)
First Commonwealth Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
First Commonwealth Financial Corporation (the "Holder") is the registered owner
of _____ common securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the 9.50% Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
Subject to the limitations in Section 9.1(c) of the Declaration (as defined
below), the Common Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The 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 September 8, 1999, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Common Securities Guarantee
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Securities Guarantee to the extent provided therein.
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 indirect beneficial ownership in the Debentures.
A2-1
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of September 1999.
FIRST COMMONWEALTH CAPITAL TRUST I
By:________________________________
Name:
Title: Administrative Trustee
A2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the liquidation amount of $1,000 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually at the
Coupon Rate (to the extent permitted by applicable law). Pursuant to the
Registration Rights Agreement, in certain limited circumstances the Debenture
Issuer will be required to pay Liquidated Damages (as defined in the
Registration Rights Agreement) with respect to the Debentures. The term
"Distributions," as used herein, includes such cash distributions and any such
interest and such Liquidated Damages payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor.
Distributions on the Common Securities will be cumulative, will accrue
from the most recent date to which Distributions have been paid or duly provided
for or, if no Distributions have been paid or duly provided for, from September
8, 1999 and will be payable semi-annually in arrears, on March 1 and September 1
of each year, commencing on March 1, 2000, except as otherwise described below.
Distributions will be computed on the basis of a 360-day year consisting of
twelve 30-day months and, for any period less than a full calendar month, the
number of days elapsed in such month. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 10 consecutive calendar semi-annual periods, including
the first such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall end on a day other
than an Interest Payment Date for the Debentures or shall extend beyond the
Maturity Date of the Debentures. As a consequence of such deferral,
Distributions also will be deferred. Despite such deferral, Distributions will
continue to accumulate with interest thereon (to the extent permitted by
applicable law, but not at a rate exceeding the rate of interest then accruing
on the Debentures) at the Coupon Rate compounded semi-annually during any such
Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions within such Extension Period, may not
exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Debentures. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date preceding
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
Subject to the Sponsor obtaining any prior regulatory approval then
required and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time terminate the Trust and, after satisfaction of any liabilities to creditors
of the Trust in accordance with applicable law, cause the Debentures to be
A2-3
<PAGE>
distributed to the holders to the Securities in liquidation of the Trust or,
simultaneous with any redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:______________________________
Signature: _______________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature Guarantee*: ____________________________________
______________________
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A2-5
<PAGE>
Exhibit B-1
Purchase Agreement
<PAGE>
$35,000,000
First Commonwealth Capital Trust I
9.50% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
guaranteed by
First Commonwealth Financial Corporation
PURCHASE AGREEMENT
------------------
September 2, 1999
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, New York 10048
Ladies and Gentlemen:
First Commonwealth Capital Trust I (the "Trust"), a statutory business
trust created under the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. (Sections 3801 et seq.)) (the "Delaware
Business Trust Act"), and First Commonwealth Financial Corporation, a
Pennsylvania business corporation (the "Company" and together with the Trust,
the "Offerors"), confirm their agreement (the "Agreement") with Keefe, Bruyette
& Woods, Inc. (the "Initial Purchaser"), with respect to the issue and sale by
the Trust and the purchase by the Initial Purchaser of the 35,000 9.50% Capital
Securities (liquidation amount of $1,000 per security) of the Trust (the
"Capital Securities"). The Capital Securities will be guaranteed by the
Company, to the extent described in the Offering Memorandum (as defined below),
with respect to distributions and payments upon liquidation, redemption and
otherwise pursuant to the Capital Securities Guarantee Agreement (the "Capital
Securities Guarantee"), to be dated as of September 8, 1999, between the Company
and The Chase Manhattan Bank, as Trustee (the "Guarantee Trustee"). The Capital
Securities issued in book-entry form will be issued to Cede & Co. as nominee of
The Depository Trust Company ("DTC") pursuant to an additional or supplemental
letter agreement, to be dated on or prior to the Initial Closing Time (as
defined in Section 2(b) hereof) (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The Company is a registered bank holding company under the provisions of
the Bank Holding Company Act of 1956, as amended. The Company operates two
chartered banks, First Commonwealth Bank and Southwest Bank (each a "Bank" and,
collectively, the "Banks"), which are both Pennsylvania chartered banks. The
entire proceeds from the sale of the Capital Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the Company, to the
<PAGE>
extent set forth in the Offering Memorandum, with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee" and, together
with the Capital Securities Guarantee, the "Guarantees"), to be dated as of
September 8, 1999, made by the Company, and will be used by the Trust to
purchase $36,083,000 of 9.50% Junior Subordinated Deferrable Interest Debentures
due September 1, 2029 (the "Subordinated Debentures") issued by the Company.
The Capital Securities and the Common Securities will be issued pursuant to the
Amended and Restated Declaration of Trust, to be dated as of September 8, 1999
(the "Declaration"), among the Company, as sponsor, John J. Dolan, William R.
Jarrett and Gerard M. Thomchick, as administrative trustees (the "Administrative
Trustees"), The Chase Manhattan Bank, as property trustee (the "Property
Trustee"), and Chase Manhattan Bank Delaware, as Delaware trustee (the "Delaware
Trustee," and, together with the Property Trustee and the Administrative
Trustees, the "Trustees"). The Subordinated Debentures will be issued pursuant
to an indenture, to be dated as of September 8, 1999 (the "Indenture"), between
the Company and The Chase Manhattan Bank, as trustee (the "Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the "Initial
Securities."
The Initial Securities will be subject to the registration rights set forth
in the registration rights agreement (the "Registration Rights Agreement"), to
be executed on and dated as of the Initial Closing Time (as defined in Section
2(b) hereof). Pursuant to the Registration Rights Agreement, the Offerors will
agree, among other things, to file with the Securities and Exchange Commission
(the "Commission") (i) a registration statement (the "Exchange Offer
Registration Statement") under the United States Securities Act of 1933, as
amended (the "1933 Act"), relating to another series of capital securities
(liquidation amount $1,000 per security) of the Trust (the "Exchange Capital
Securities"), another capital securities guarantee (the "Exchange Capital
Securities Guarantee"), and another series of Junior Subordinated Deferrable
Interest Debentures due September 1, 2029 (the "Exchange Subordinated
Debentures" and, collectively with the Exchange Capital Securities and the
Exchange Capital Securities Guarantee, the "Exchange Securities"), to be offered
in exchange for the Initial Securities (such offer to exchange being referred to
as the "Exchange Offer") and/or (ii) a shelf registration statement (the "Shelf
Registration Statement") pursuant to Rule 415 of the rules and regulations under
the 1933 Act (the "1933 Act Regulations") relating to the resale by certain
holders of the Capital Securities. The Registration Rights Agreement shall
contain terms and provisions, customary for similar Rule 144A transactions, and
shall otherwise be in form and substance reasonably satisfactory to the Initial
Purchaser.
The Initial Securities and the Exchange Securities are jointly referred to
as the "Securities." The Indenture, the Declaration, the Guarantees, the
Registration Rights Agreement, the DTC Agreement, the Debenture Subscription
Agreement, dated as of September 8, 1999 (the "Debenture Subscription
Agreement") between the Company and the Trust, the Common Securities
Subscription Agreement, dated as of September 8, 1999 between the Company and
the Trust, and this Agreement are hereinafter referred to collectively as the
"Operative Documents."
The Offerors understand that the Initial Purchaser proposes to make an
offering of the Capital Securities (as guaranteed by the Capital Securities
Guarantee) on the terms and in the
2
<PAGE>
manner set forth herein and agree that the Initial Purchaser may resell, subject
to the conditions set forth herein, all or a portion of the Capital Securities
to purchasers ("Subsequent Purchasers") at any time after the date of this
Agreement. The Capital Securities are to be offered and sold through the Initial
Purchaser without being registered under the 1933 Act, in reliance upon
exemptions therefrom as described in the Preliminary Offering Memorandum (as
defined below). Pursuant to the terms of the Capital Securities, investors that
acquire Capital Securities may only resell or otherwise transfer such Capital
Securities if such Capital Securities are hereafter registered under the 1933
Act or if an exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A ("Rule 144A"),
Regulation D or Regulation S ("Regulation S") of the 1933 Act Regulations).
The Offerors have prepared and delivered to the Initial Purchaser copies of
a preliminary offering memorandum dated August 17, 1999 (the "Preliminary
Offering Memorandum") and have prepared and will deliver to the Initial
Purchaser, as soon as practicable, copies of a final offering memorandum, to be
dated September 2, 1999 (the "Final Offering Memorandum"), each for use by such
Initial Purchaser in connection with their solicitation of purchases of, or
offering of, the Capital Securities. "Offering Memorandum" means, with respect
to any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment or supplement to either such document), including
exhibits thereto and any documents incorporated therein by reference, which has
been prepared and delivered by the Offerors to the Initial Purchaser in
connection with their solicitation of purchases of, or offering of, the Capital
Securities.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "disclosed" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Offering Memorandum.
SECTION 1. Representations and Warranties.
------------------------------
(a) The Offerors jointly and severally represent and warrant to the
Initial Purchaser as of the date hereof and as of each Closing Time (as defined
in Section 2 hereof) as follows:
(i) The Offerors have not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly, solicit
any offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the sale
of the Capital Securities in a manner that would require the Capital Securities
to be registered under the 1933 Act.
(ii) The Offering Memorandum does not, and at the Closing Time will
not, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to
3
<PAGE>
statements in or omissions from the Offering Memorandum made in reliance upon
and in conformity with information furnished to the Offerors in writing by or on
behalf of the Initial Purchaser expressly for use in the Offering Memorandum.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are
filed with the Commission complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read together with the other
information in the Offering Memorandum, at the date of the Offering Memorandum
and at the Closing Time, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(iv) The financial statements (including the related notes and
supporting schedules) of the Company incorporated by reference in the Offering
Memorandum present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries for the periods indicated and the
consolidated results of operations and consolidated changes in financial
position of such entities for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods specified; and any
supporting schedules for the Company and its consolidated subsidiaries
incorporated by reference in the Offering Memorandum present fairly in all
material respects the information required to be stated therein. The selected
financial data included in the Offering Memorandum present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent with that of the audited and unaudited financial statements
incorporated in the Offering Memorandum.
(v) The accountants who certified the financial statements and
supporting schedules of the Company and its consolidated subsidiaries
incorporated by reference in the Offering Memorandum are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(vi) Since the respective dates as of which information is given in
the Offering Memorandum, except as may otherwise be stated in, or referred to
therein: (1) there has not been any material adverse change in the condition,
financial or otherwise, of the Trust or of the Company and its consolidated
subsidiaries considered as one enterprise, or in the earnings, assets, business
affairs or business prospects of the Trust or of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (2) there have not been any transactions entered
into by the Trust or by the Company or any of its subsidiaries, other than in
the ordinary course of business, which are material to the Trust or the Company
and its consolidated subsidiaries considered as one enterprise, and (3) except
for regular quarterly dividends on the Company's outstanding shares of common
stock, there has been no dividend or distribution of any kind declared, paid or
made by the Company on its capital stock or by the Trust on any class of its
securities.
(vii) The Company has been duly incorporated and is validly subsisting
as a corporation under the laws of the Commonwealth of Pennsylvania and has
corporate power and
4
<PAGE>
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and to enter into and perform its
obligations under this Agreement; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and the Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended.
(viii) Each of First Commonwealth Bank and Southwest Bank has been
duly incorporated and is validly subsisting as a bank under the laws of the
Commonwealth of Pennsylvania, and each of the Banks has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each of the Banks
has been duly authorized and validly issued, is fully paid and non-assessable
and is directly or indirectly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of the Banks was issued in violation of
the preemptive or similar rights of any stockholder of such corporation arising
by operation of law, under the charter or by-laws of any subsidiaries or under
any agreement to which the Company or any such Bank is a party.
(ix) Each of the Company's subsidiaries other than the Banks has
been duly incorporated and is validly existing or subsisting, as the case may
be, as a corporation in good standing under the laws of the jurisdiction of its
incorporation or organization and, to the extent applicable, each such
subsidiary is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, except for such jurisdictions where the failure to be so qualified
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable; except as set forth or
incorporated by reference in the Offering Memorandum, the capital stock of each
such subsidiary is owned by the Company, free and clear of any pledge, lien,
encumbrance, claim or equity.
(x) The Company and its subsidiaries have good and marketable title
to all properties (real and personal) owned by the Company and its subsidiaries,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Offering Memorandum or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company or its subsidiaries; and all
properties held under lease by the Company or its subsidiaries and material to
the business of the
5
<PAGE>
Company and its subsidiaries, considered as a single enterprise are held under
valid, subsisting and enforceable leases.
(xi) The authorized, issued and outstanding capital stock of the
Company set forth in the Offering Memorandum under the heading "Capitalization
- --Actual" is accurate in all material respects as of the date indicated in such
document; and the shares of such issued and outstanding capital stock have been
duly authorized and validly issued and are fully paid and non-assessable and
such capital stock conforms in all material respects to all statements relating
thereto contained in the Offering Memorandum.
(xii) The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under the
Operative Documents, as applicable, and the Capital Securities; the Trust is not
a party to or otherwise bound by any material agreement other than those
described in the Offering Memorandum; the Trust is and will, under current law,
be classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation; the Trust does not have any
consolidated or unconsolidated subsidiaries; the Trust is and will be treated as
a consolidated subsidiary of the Company pursuant to GAAP; and to the Company's
knowledge, the Trust is not required to be authorized to do business in any
jurisdiction other than the State of Delaware, except where the failure so to
qualify or be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(xiii) 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 Offering Memorandum, will be validly issued
and will represent undivided beneficial interests in the assets of the Trust;
the issuance of the Common Securities is not subject to preemptive or other
similar rights; and at the Closing Time all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(xiv) As of the applicable Closing Time, the Capital Securities will
have been duly authorized by the Trust and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Offering Memorandum,
and the issuance of the Capital Securities will not be subject to preemptive or
other similar rights; and as of the Initial Closing Time, the Exchange Capital
Securities will have been duly authorized by the Trust, and when issued in
accordance with the Declaration, will be validly issued and fully paid and non-
assessable undivided beneficial interests in the Trust. The holders of the
Capital Securities and the Exchange Capital Securities, respectively, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability as that extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware; it
being understood, however, that the holders of the Capital Securities and the
Exchange Capital Securities, if any, may be obligated, pursuant to the
Declaration, to (i) provide indemnity and/or security in connection therewith
and pay taxes or governmental
6
<PAGE>
charges arising from transfers thereof and the issuance of replacement Capital
Securities and the Exchange Capital Securities, if any, and (ii) provide
security and indemnity in connection with requests of or directions to the
Property Trustee and to exercise its rights and powers under the Declaration.
(xv) The execution and delivery by the Trust and the Company of
this Agreement and the performance by the Trust and the Company of their
respective obligations hereunder, have been duly authorized by all necessary
business trust action on the part of the Trust and corporate action on the part
of the Company; and this Agreement has been duly executed and delivered by the
Trust and the Company.
(xvi) The Declaration has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the Company
and the Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, the Declaration
will, at the Closing Time, be a valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in accordance
with its terms, except to the extent that enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity and the availability of equitable remedies
(regardless of whether enforcement is considered in a proceeding at law or in
equity) (collectively, the "Enforceability Exceptions"); and at the time the
Exchange Offer is consummated, the Declaration will have been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
(xvii) Each of the Guarantees and the Exchange Capital Securities
Guarantee has been duly authorized by the Company and, at the Closing Time, each
of the Guarantees will have been duly executed and delivered by the Company, and
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions; at or prior
to the time the Exchange Offer is consummated, the Exchange Capital Securities
Guarantee will have been duly executed and delivered by the Company, and will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; and at the time the
Exchange Offer is consummated, the Exchange Capital Securities Guarantee will
have been duly qualified under the 1939 Act.
(xviii) The Indenture has been duly authorized by the Company and, at
the Closing Time, will have been duly executed and delivered by the Company and
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions; and at the
time the Exchange Offer is consummated, the Indenture will have been duly
qualified under the 1939 Act and will conform to the description thereof
contained in the Offering Memorandum.
(xix) The Subordinated Debentures have been duly authorized by the
Company and, at the Closing Time, will have been duly executed by the Company
and, when authenticated
7
<PAGE>
in the manner provided for in the Indenture and delivered against payment
therefor as described in the Offering Memorandum, will constitute valid and
binding obligations of the Company, and the Exchange Subordinated Debentures
have been duly authorized by the Company and, when duly executed by the Company
and authenticated in the manner provided in the Indenture, will constitute valid
and binding obligations of the Company, in each case, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; and the Subordinated
Debentures will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will be accurately described in all material respects in the
Offering Memorandum and be consistent in all material respects with the
description thereof in the Offering Memorandum.
(xx) The Registration Rights Agreement has been duly authorized by
the Offerors and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms, except to the
extent enforcement thereof may be limited by the Enforceability Exceptions; and
the Registration Rights Agreement will be accurately described in all material
respects in the Offering Memorandum and be consistent in all material respects
with the description thereof contained in the Offering Memorandum.
(xxi) The Operative Documents, the Capital Securities, the Common
Securities and the Guarantees each will be accurately described in all material
respects in the Offering Memorandum and be consistent in all material respects
to the descriptions thereof contained in the Offering Memorandum.
(xxii) Each of the Administrative Trustees is an officer or employee
of the Company and has been duly authorized by the Company to execute and
deliver the Declaration.
(xxiii) At the Closing Time, the Property Trustee will be the record
holder of the Subordinated Debentures and no security interest, mortgage,
pledge, lien, encumbrance, claim or equity will be noted thereon or on the
Subordinated Debenture register maintained by or on behalf of the Company.
(xxiv) Neither the Trust nor the Company is, and immediately
following consummation of the transactions contemplated hereby will not be, an
"investment company" or a company "controlled" by an "investment company" which
is required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxv) The Trust is not in violation of the Trust Certificate
(defined below) or the Declaration, and neither the Company nor any of the Banks
is in violation of its charter or by-laws and none of the Trust, the Company or
any of the Company's subsidiaries is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any indenture,
mortgage, loan agreement, or any contract, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
violation or default, singly or in the aggregate, would have a material adverse
effect on the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise; the execution and delivery of this Agreement and
the Operative Documents by the Trust or the Company, as the case may be, and the
8
<PAGE>
consummation by the Offerors of the transactions herein and therein contemplated
and the compliance with the terms of this Agreement and the issuance and
delivery of the Capital Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust, the Company or any of the Banks under, any contract,
indenture, mortgage, deed of trust or other material agreement or instrument to
which the Trust, the Company or any Bank is a party or by which it or any of
their respective properties are bound, except for such conflicts, breaches and
defaults as, in the aggregate, would not be material to the Trust, or to the
Company and its subsidiaries considered as one enterprise, nor will such action
result in any violation of the charter or by-laws of the Company or any of the
Banks or the Declaration or the trust certificate of the Trust filed with the
State of Delaware on August 16, 1999 (the "Trust Certificate"), or any existing
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, the Company or any Bank or any of their respective properties.
(xxvi) No filing with, or approval, authorization or consent of, any
court or governmental authority or agency is required in connection with the
offering, issuance or sale of the Capital Securities under this Agreement or the
consummation of the transactions contemplated by the Operative Documents, except
such as have been obtained or will have been obtained prior to the Closing Time
or as may be required under federal and state securities laws.
(xxvii) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or its subsidiaries which is not disclosed in the Offering
Memorandum which, individually or in the aggregate, might reasonably be expected
to result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or which might
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of this Agreement or the performance by the
Company of its obligations hereunder.
(xxviii) The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns that are required to be filed or have duly
requested extensions thereof and have paid all taxes which the Company believes
to be required to be paid by any of them and any related assessments, fines or
penalties, except for any such tax, assessment, fine or penalty that is being
contested in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in accordance with GAAP in the
financial statements referred to in Section 1(a)(iv) above in respect of all
federal, state, local and foreign taxes for all periods as to which the tax
liability of the Company or its subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities.
(xxix) The Company and its subsidiaries carry or are entitled to the
benefits of insurance in such amounts and covering such risks as is generally
deemed adequate for its business and consistent with insurance coverage
maintained by companies of similar size and scope of operations in similar
businesses, and all such insurance is in full force and effect.
9
<PAGE>
(xxx) The Company and its subsidiaries possess such certificates,
authorities, permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to possess such
Governmental Licenses would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxxi) The Company and its subsidiaries own or possess or can acquire
on reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "patent and proprietary
rights") presently employed by them in connection with the business now operated
by them as described in the Offering Memorandum, except where lack thereof would
not result in a material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, and the Company and
its subsidiaries have not received any notice or is not otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
patent or proprietary rights or of any facts or circumstances which would render
any patent and proprietary rights invalid or inadequate to protect the interest
of the Company and its subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise.
(xxxii) No labor dispute with the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is imminent.
(xxxiii) The Trust, the Company and its subsidiaries are in compliance
with, and conduct their respective businesses in conformity with, all applicable
laws and governmental regulations, the violation of which would have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs, or business prospects of the Trust, or the Company and its
subsidiaries considered as one enterprise.
10
<PAGE>
(xxxiv) Other than such agreements, contracts and other documents as are
described in the Offering Memorandum or otherwise filed as Exhibits to the
Company's annual report on Form 10-K or quarterly reports on Form 10-Q
incorporated by reference in the Offering Memorandum, there are no agreements,
contracts or documents of a character described in Item 601 of Regulation S-K of
the Commission to which the Company or any of the Principal Subsidiaries is a
party.
(xxxv) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Capital Securities.
(xxxvi) The Capital Securities are eligible for resale pursuant to Rule
144A and will not be, at the Closing Time, of the same class as securities
listed on a national securities exchange registered under Section 6 of the 1934
Act, or quoted in a U.S. automated interdealer quotation system.
(xxxvii) None of the Trust, the Company, or any of their affiliates, as
such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or any
person acting on its or any of their behalf (other than the Initial Purchaser,
as to whom the Offerors make no representation) has engaged or will engage, in
connection with the offering of the Capital Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
1933 Act.
(xxxviii) Subject to compliance by the Initial Purchaser with the
procedures set forth in Section 6 hereof, prior to the Exchange Offer, it is not
necessary in connection with the offer, sale and delivery of the Capital
Securities to the Initial Purchaser and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the Offering Memorandum to register
the Capital Securities under the 1933 Act or to qualify any indenture or any
guarantee under the 1939 Act.
(xxxix) With respect to those Capital Securities, if any, sold in
reliance on Regulation S, (A) none of the Trust, the Company, its Affiliates or
any person acting on its or their behalf (other than the Initial Purchaser, as
to whom the Offerors make no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B) each of the
Trust, the Company and its Affiliates and any person acting on its or their
behalf (other than the Initial Purchaser, as to whom the Offerors make no
representation) has complied and will comply with the offering restrictions
requirement of Regulation S.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of the Banks and delivered to you or to
counsel for the Initial Purchaser shall be deemed a representation and warranty
by the Trust or the Company, as the case may be, to the Initial Purchaser as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchaser; Closing.
-----------------------------------------------
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from
the Trust, at a price of $1,000 per Capital Security to be
11
<PAGE>
delivered on September 8, 1999 and at a price of $1,000 plus accumulated
distributions per Capital Security to be delivered on September 22, 1999, the
Capital Securities.
(b) Deliveries of certificates for 25,000 of the Capital Securities shall
be made at the office of the Initial Purchaser in New York (or at the offices of
Brown & Wood llp specified below in the case of Capital Securities registered in
the name of Cede & Co.), and payment of the purchase price for such Capital
Securities shall be made by the Initial Purchaser to the Trust by wire transfer
of immediately available funds contemporaneous with closing at the offices of
Brown & Wood llp, One World Trade Center, New York, New York 10048, at 10:00
A.M. on September 8, 1999, or such other time as may be agreed upon by the
Initial Purchaser and the Offerors (such time and date of payment and delivery
being herein called the "Initial Closing Time").
Deliveries of certificates for 10,000 of the Capital Securities shall be
made at the office of the Initial Purchaser in New York (or at the offices of
Brown & Wood llp specified below in the case of Capital Securities registered in
the name of Cede & Co.), and payment of the purchase price for such Capital
Securities shall be made by the Initial Purchaser to the Trust by wire transfer
of immediately available funds contemporaneous with closing at the offices of
Brown & Wood llp, One World Trade Center, New York, New York 10048, at 10:00
A.M. on September 22, 1999, or such other time as may be agreed upon by the
Initial Purchaser and the Offerors (such time and date of payment and delivery
being herein called the "Second Closing Time" and each of the Initial Closing
Time and the Second Closing Time being referred to as a "Closing Time").
Payment for the Capital Securities purchased by the Initial Purchaser shall
be made to the Trust by wire transfer of immediately available funds, against
delivery for the account of the Initial Purchaser of certificates for the
Capital Securities. Certificates for the Capital Securities shall be in such
denominations and registered in such names as the Initial Purchaser may request
in writing at least one business day before the relevant Closing Time. The
certificates representing the Capital Securities which are not resold to
institutional "accredited investors" shall be registered in the name of Cede &
Co. pursuant to the DTC Agreement and shall be made available for examination
and packaging by the Initial Purchaser in The City of New York not later than
10:00 A.M. on the last business day prior to the relevant Closing Time.
(c) As compensation to the Initial Purchaser for its commitments hereunder
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used to purchase Subordinated Debentures of the Company, the Company
hereby agrees to pay at each Closing Time to the Initial Purchaser in
immediately available funds, $15.00 per Capital Security to be delivered by the
Company hereunder at the relevant Closing Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with the
-------------------------
Initial Purchaser as follows:
(a) The Offerors, as promptly as possible, will furnish to the Initial
Purchaser, without charge, such number of copies of the Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as the Initial Purchaser may reasonably request.
12
<PAGE>
(b) The Offerors will promptly notify the Initial Purchaser, and confirm
such notice in writing, of (x) any filing made by the Offerors of information
relating to the offering of the Capital Securities with any securities exchange
or any other regulatory body in the United States or any other jurisdiction, and
(y) prior to the completion of the placement of the Capital Securities by the
Initial Purchaser as evidenced by a notice in writing from the Initial Purchaser
to the Offerors, any material changes in or affecting the earnings, business
affairs or business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise, which (i) make any statement in the Offering
Memorandum (as then amended or supplemented) false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel or counsel for the Initial Purchaser, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum not include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances then existing, the Company will forthwith
amend or supplement the Offering Memorandum by preparing and furnishing to the
Initial Purchaser an amendment or amendments of, or a supplement or supplements
to, the Offering Memorandum (in form and substance satisfactory in the
reasonable opinion of counsel for the Initial Purchaser) so that, as so amended
or supplemented, the Offering Memorandum will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a Subsequent Purchaser, not misleading.
(c) The Offerors will advise the Initial Purchaser promptly of any
proposal to amend or supplement the Offering Memorandum and will not effect such
amendment or supplement without the consent of the Initial Purchaser, which
consent shall not be unreasonably withheld. Neither the consent of the Initial
Purchaser, nor the Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) The Company will use its reasonable best efforts to permit the
Securities to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market.
(e) The Company, during the period when the Offering Memorandum is
required to be delivered pursuant to Section 6(a)(vii) hereof, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(f) The Offerors will cooperate with the Initial Purchaser and use their
reasonable best efforts to permit the Capital Securities to be eligible for
clearance and settlement through the facilities of DTC.
(g) The Trust will use the proceeds received by it from the sale of the
Capital Securities in the manner specified in the Offering Memorandum under "Use
of Proceeds," and the Company will use the net proceeds received by it from the
sale of the Subordinated Debentures
13
<PAGE>
substantially in the manner specified or contemplated in the Offering Memorandum
under "Use of Proceeds."
(h) Prior to the thirtieth day after the date of the Closing Time, neither
the Trust nor the Company will, without the prior written consent of the Initial
Purchaser, directly or indirectly, issue, sell, offer or agree to sell, grant
any option for the sale of, or otherwise dispose of, Capital Securities, any
security convertible into, exchangeable or exercisable for Capital Securities or
the Subordinated Debentures or any debt securities substantially similar
(including provisions with respect to the deferral of interest) to the
Subordinated Debentures or any equity security substantially similar to the
Capital Securities (except for the Securities issued pursuant to this
Agreement).
(i) The Company will use its reasonable best efforts, in cooperation with
the Initial Purchaser, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the Initial
Purchaser may reasonably designate and will maintain such qualifications in
effect for a period of one year for the sale of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations and the obligations of the Trust under this
Agreement, including (i) the preparation, printing and any filing of the
Preliminary Offering Memorandum, the Final Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchaser of this Agreement,
the Operative Documents and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Initial Purchaser, including any transfer taxes, any stamp or
other duties payable upon the sale, issuance and delivery of the Securities to
the Initial Purchasers and any charges of DTC in connection therewith, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) any fees payable in connection with the rating of the Capital Securities,
(vi) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(i) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Initial Purchaser of up to
$15,000 in connection therewith and in connection with the preparation of the
Blue Sky Survey, any supplement thereto, (vii) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (viii) any fees and expenses
payable in connection with the initial and continued designation of the
Securities as PORTAL securities under the PORTAL Market Rules pursuant to NASD
Rule 5322 and (ix) the fees and expenses of any trustee appointed under any of
the Operative Documents, including the fees and disbursements of counsel for
such trustees in connection with the Operative Documents.
14
<PAGE>
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchaser in accordance with the provisions of Section 5 or Section 10
(a)(i), hereof, the Company shall reimburse the Initial Purchaser for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of Brown & Wood llp, counsel for the Initial Purchaser.
SECTION 5. Conditions of the Initial Purchaser's Obligations. The
-------------------------------------------------
obligations of the Initial Purchaser hereunder are subject to the accuracy of
the representations and warranties of the Offerors contained in Section 1 hereof
or in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) Opinion of Outside Counsel for Offerors. At the Initial Closing Time,
the Initial Purchaser shall have received the favorable opinion, dated as of the
Initial Closing Time, of Drinker Biddle & Reath LLP, counsel to the Company, to
the effect set forth in Exhibit A hereto.
(b) Opinion of Special Delaware Counsel for Offerors. At the Initial
Closing Time, the Initial Purchaser shall have received the favorable opinion,
dated as of the Initial Closing Time, of Richards, Layton & Finger P.A., special
Delaware counsel to the Offerors to the effect set forth in Exhibit B hereto.
(c) Opinions of Counsel for The Chase Manhattan Bank. At the Initial
Closing Time, the Initial Purchaser shall have received the favorable opinions,
dated as of the Initial Closing Time, of Pryor Cashman Sherman & Flynn LLP,
counsel to The Chase Manhattan Bank, as Property Trustee under the Declaration,
and Guarantee Trustee under the Capital Securities Guarantee Agreement, to the
effect set forth as Exhibit C hereto.
(d) Opinion of Special Tax Counsel for the Offerors. At the Initial
Closing Time, the Initial Purchaser shall have received an opinion, dated as of
the Initial Closing Time, of Drinker Biddle & Reath LLP, special tax counsel to
the Offerors, that (i) the Subordinated Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company, (ii) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation and (iii)
although the discussion set forth in the Offering Memorandum under the heading
"Certain Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Capital Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
(e) Opinion of General Counsel for the Offerors. At the Initial Closing
Time, the Initial Purchaser shall have received the favorable opinion, dated as
of the Initial Closing Time, of David R. Tomb, Jr., Esq., inside counsel for the
Company, to the effect set forth in Exhibit D hereto.
15
<PAGE>
(f) Opinion of Counsel for Initial Purchaser. At the Initial Closing Time,
the Initial Purchaser shall have received the favorable opinion, dated as of the
Initial Closing Time, of Brown & Wood LLP, counsel for the Initial Purchaser,
with respect to the Capital Securities, the Indenture, the Capital Securities
Guarantee Agreement, this Agreement, the Registration Rights Agreement, the
Offering Memorandum and other related matters as the Initial Purchaser may
require. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company and its
subsidiaries and certificates of public officials.
(g) Certificates. At each Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchaser shall have received at each Closing Time a certificate of any
Chairman, any Vice Chairman, the Chief Executive Officer, the President or any
Executive Vice President or Senior Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
Time, to the effect that, to his or her knowledge, (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof were true and correct when made and are true and correct with the same
force and effect as though expressly made at and as of the Closing Time, and
(iii) the Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to the Closing
Time.
(h) Accountant's Comfort Letter. At the time of execution of this
Agreement, the Initial Purchaser shall have received from each of Deloitte &
Touche LLP, KMPG LLP and Grant Thornton LLP a letter dated such date, in form
and substance satisfactory to the Initial Purchaser, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
initial purchasers with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(i) Bring-down Comfort Letter. At the Initial Closing Time, the Initial
Purchaser shall have received from each of Deloitte & Touche LLP, KPMG LLP and
Grant Thornton LLP a letter, dated as of the Initial Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (h) of this Section.
(j) PORTAL. At the Initial Closing Time, the Securities shall have been
designated for trading on PORTAL.
(k) Additional Documents. At each Closing Time, counsel for the Initial
Purchaser shall have been furnished with the Registration Rights Agreement,
executed by the Company and the Trust, and such other documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Capital Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of the
Offerors, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors in connection with the issuance and sale of
the Capital Securities as herein contemplated shall be
16
<PAGE>
reasonably satisfactory in form and substance to the Initial Purchaser and
counsel for the Initial Purchaser.
(l) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchaser by written notice to the
Offerors at any time at or prior to the relevant Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any
such termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Sales of the Capital Securities.
-----------------------------------------------------
(a) Offer and Sale Procedures. The Initial Purchaser and the Offerors
hereby establish and agree to observe the following procedures in connection
with the offer and sale of the Capital Securities:
(i) Offers and Sales only to Institutional Accredited Investors,
------------------------------------------------------------
Qualified Institutional Buyers and Non-U.S. Persons. Offers and sales of the
- ---------------------------------------------------
Capital Securities will be made only by the Initial Purchaser or Affiliates
thereof qualified to do so in the jurisdictions in which such offers or sales
are made. Each such offer or sale shall only be made (A) to persons whom the
offeror or seller reasonably believes to be qualified institutional buyers (as
defined in Rule 144A under the Securities Act) ("Qualified Institutional
Buyers"), (B) to a limited number of other institutional "accredited investors"
(as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D)
that the offeror or seller reasonably believes to be and, with respect to sales
and deliveries, that are accredited investors ("Institutional Accredited
Investors"), or (C) non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes offers and sales of the Capital Securities
may be made in reliance upon Regulation S under the 1933 Act.
(ii) No General Solicitation. No general solicitation or general
-----------------------
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be used
in the United States in connection with the offering of the Capital Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
---------------------------------
Subsequent Purchaser of a Capital Security acting as a fiduciary for one or more
third parties in connection with an offer and sale to such purchaser pursuant to
clause (a) above, each third party shall, in the reasonable judgment of the
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. The Initial Purchaser will
---------------------------------
take reasonable steps to inform, and cause each of its U.S. Affiliates to take
reasonable steps to inform, persons acquiring Capital Securities from the
Initial Purchaser or Affiliate, as the case may be, in the United States that
the Capital Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A or in accordance with another exemption from registration
under the 1933 Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the United States
in accordance with Regulation S, or (3) inside the United States in
17
<PAGE>
accordance with (x) Rule 144A to a person whom the seller reasonably believes is
a Qualified Institutional Buyer that is purchasing such Securities for its own
account or for the account of a Qualified Institutional Buyer to whom notice is
given that the offer, sale or transfer is being made in reliance on Rule 144A or
(y) pursuant to another exemption from registration under the 1933 Act.
(v) Minimum Amount. No sale of the Capital Securities to any one
--------------
Subsequent Purchaser will be in blocks of less than U.S. $100,000 liquidation
amount.
(vi) Restrictions on Transfer. The transfer restrictions and the
------------------------
other provisions of the Declaration, including the legend required thereby,
shall apply to the Capital Securities except as otherwise agreed by the Offerors
and the Initial Purchaser. Following the sale of the Capital Securities by the
Initial Purchaser to Subsequent Purchasers pursuant to and in compliance with
the terms hereof, the Initial Purchaser shall not be liable or responsible to
the Offerors for any losses, damages or liabilities suffered or incurred by the
Offerors, including any losses, damages or liabilities under the 1933 Act,
arising from or relating to any resale or transfer of any Capital Security.
(vii) Delivery of Offering Memorandum. The Initial Purchaser will
-------------------------------
deliver to each purchaser of the Capital Securities from the Initial Purchaser,
in connection with its original distribution of the Capital Securities, a copy
of the Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with the Initial Purchaser as follows:
(i) Due Diligence. In connection with the original distribution of
-------------
the Capital Securities, the Offerors agree that, prior to any offer or sale of
the Capital Securities by the Initial Purchaser, the Initial Purchaser and
counsel for the Initial Purchaser shall have the right to make reasonable
inquiries into the business of the Trust, the Company and its subsidiaries. The
Offerors also agree to provide information to each prospective Subsequent
Purchaser of Capital Securities who so requests concerning the Trust, the
Company and its subsidiaries (to the extent that such information is available
or can be acquired and made available to prospective Subsequent Purchasers
without unreasonable effort or expense and to the extent the provision thereof
is not prohibited by applicable law) and the terms and conditions of the
offering of the Securities, as provided in the Offering Memorandum.
(ii) Integration. The Offerors agree that they will not and will
-----------
cause their Affiliates not to make any offer or sale of securities of the
Offerors of any class if, as a result of the doctrine of "integration" referred
to in Rule 502 under the 1933 Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Capital Securities by the Trust to the
Initial Purchaser, (ii) the resale of the Capital Securities by the Initial
Purchaser to Subsequent Purchasers or (iii) the resale of the Capital Securities
by such Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule 144A or
by Regulation S thereunder or otherwise.
18
<PAGE>
(iii) Rule 144A Information. The Company agrees that, in order to
---------------------
render the Capital Securities eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Capital Securities remain outstanding, the
Company will make available, upon request, to any holder of Capital Securities
or prospective purchasers of Capital Securities the information specified in
Rule 144A(d)(4), unless such information is furnished to the Commission pursuant
to Section 13 or 15(d) of the 1934 Act (such information, whether made available
to holders or prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information").
(iv) Restriction on Repurchases. Until the expiration of two years
--------------------------
(or such shorter period as may hereafter be referred to in Rule 144(k) (or
similar successor rule)) after the original issuance of the Capital Securities,
the Offerors will not, and will use its reasonable best efforts to cause their
Affiliates not to, purchase or agree to purchase or otherwise acquire any
Capital Securities which are "restricted securities" (as such term is defined
under Rule 144(a)(3) under the 1933 Act), whether as beneficial owner or
otherwise, unless, immediately upon any such purchase, the Offerors or any
Affiliate shall submit such securities to the Trustee for cancellation.
(v) The Initial Purchaser represents and warrants to, and agrees
with, the Company that it is a Qualified Institutional Buyer (as defined in
Section 6(a)(i)) and an Institutional Accredited Investor (as defined in Section
6(a)(i)).
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. The Initial
Purchaser understands that the Capital Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of U.S. persons except in accordance
with Regulation S under the 1933 Act or pursuant to an exemption from the
registration requirements of the 1933 Act. The Initial Purchaser represents and
agrees that, except as permitted below, it has offered and sold Capital
Securities and will offer and sell Capital Securities (i) as part of their
distribution at any time and (ii) otherwise until forty days after the later of
the date upon which the offering of the Capital Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S or Rule 144A
under the 1933 Act or to Institutional Accredited Investors. Accordingly,
neither the Initial Purchaser, its Affiliates nor any persons acting on their
behalf have engaged or will engage in any directed selling efforts with respect
to Capital Securities, and the Initial Purchaser, its Affiliates and any person
acting on their behalf have complied and will comply with the offering
restriction requirements of Regulation S. The Initial Purchaser agrees that, at
or prior to confirmation of a sale of Capital Securities (other than a sale of
Capital Securities pursuant to Rule 144A or to Institutional Accredited
Investors), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
or through it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered
under the United States Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time and
(ii) otherwise until forty days after the
19
<PAGE>
later of the date upon which the offering of the Securities
commenced and the date of closing, except in either case in
accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
The Initial Purchaser severally represents and agrees that it has not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Capital Securities, except with its affiliates or with the
prior written consent of the Offerors.
(d) Compliance with United Kingdom Law. The Initial Purchaser represents
and agrees that (i) it has not offered or sold and, prior to the expiration of
the period of six months from the date hereof, will not offer or sell any
Capital Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Capital Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on, and (iii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to any Capital Securities in, from or
otherwise involving the United Kingdom.
(e) Compliance with Other Laws. The Initial Purchaser acknowledges that no
action has been taken to permit a public offering of the Capital Securities in
any jurisdiction outside of the United States where action would be required for
such purpose. The Initial Purchaser agrees that it will not offer or sell any
Capital Securities in any jurisdiction outside of the United States except under
circumstances that will result in compliance with all applicable laws thereof.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Initial Purchaser. The Offerors agree to jointly
and severally indemnify and hold harmless the Initial Purchaser and each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact included in the Preliminary Offering Memorandum or
the Final Offering Memorandum (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
20
<PAGE>
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission referred to in clause (i)
above, or any such alleged untrue statement or omission referred to in clause
(i) above; provided that (subject to Section 7(c) below) any such settlement is
effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the third sentence of Section 7(c) hereof, the reasonable fees and
disbursements of counsel chosen by the Initial Purchaser), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission referred to in clause (i), or any such alleged untrue statement or
omission referred to in clause (i), to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Offerors by the Initial Purchaser expressly for use in the Preliminary Offering
Memorandum or the Final Offering Memorandum (or any amendment or supplement
thereto) and (B) the Offerors shall not be liable to the Initial Purchaser or
any controlling person with respect to any untrue statement or allege untrue
statement or omission or alleged omission in the Preliminary Offering Memorandum
to the extent that any such loss, liability, claim, damage or expense of the
Initial Purchaser or controlling person results from the fact that the Initial
Purchaser sold Capital Securities to a person to whom there was not sent or
given a copy of the Final Offering Memorandum if the Company had previously
furnished copies of the Final Offering Memorandum to the Initial Purchaser and
the loss, liability, claim, damage or expense of the Initial Purchaser or
controlling person results from an untrue statement or omission of a material
fact contained in the Preliminary Offering Memorandum which was corrected in the
Final Offering Memorandum.
(b) Indemnification of Offerors, Directors and Officers. The Initial
Purchaser agrees, severally, to indemnify and hold harmless the Company, its
directors and officers, the Trust, each of the Administrative Trustees and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Final Offering
Memorandum (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchaser expressly for use in the Final Offering Memorandum (or any amendment
or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may
21
<PAGE>
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action; or,
if it so elects within a reasonable time after receipt of such notice, to assume
the defense of any suit brought to enforce any such claim; but if it so elects
to assume the defense, such defense shall be conducted by counsel chosen by it
and approved by the indemnified parties or any person or persons controlling the
respective indemnified parties, defendant or defendants in any suit so brought,
which approval shall not be unreasonably withheld. In the event that an
indemnifying party elects to assume the defense of any such suit and retain such
counsel, the indemnified party or parties or such controlling person or persons
shall bear the fees and expenses of any additional counsel thereafter retained
by such indemnified party or parties or controlling person; provided, however,
that the indemnified party or parties shall have the right to employ counsel (in
addition to local counsel) to represent the indemnified party or parties or any
such controlling person who may be subject to liability arising out of any
action in respect of which indemnity may be sought against the indemnifying
party if, in the reasonable judgment of counsel for the indemnified party or
parties, there may be a conflict of interest such that multiple representation
would violate the Code of Professional Responsibility or like governing rules,
in which event the fees and expenses of appropriate separate counsel shall be
borne by the indemnifying party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under this
Section 7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 7 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Initial Purchaser on the other hand
22
<PAGE>
from the offering of the Capital Securities pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors, on
the one hand, and of the Initial Purchaser, on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Offerors on the one hand and the
Initial Purchaser on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Initial
Purchaser, bear to the aggregate initial offering price of the Capital
Securities.
The relative fault of the Offerors, on the one hand, and the Initial
Purchaser, on the other hand, shall be determined by reference to, among other
things, whether any such 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 Offerors or by the Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Initial Purchaser were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Capital Securities purchased by it and distributed
to the public were offered to the public exceeds the amount of any damages which
the Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls the
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Initial
Purchaser, and each officer and director of the Company, each Administrative
Trustee of the Trust, and each person, if any, who controls the
23
<PAGE>
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company and the
Trust.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Initial Purchaser or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Capital Securities to the Initial Purchaser.
SECTION 10. Termination of Agreement.
------------------------
(a) The Initial Purchaser may terminate this Agreement, by notice to the
Company, at any time at or prior to each Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Offering Memorandum, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Initial Purchaser, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal, New York or Pennsylvania authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 7 and 8
shall survive such termination and remain in full force and effect.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchaser shall be directed to the Initial Purchaser at Keefe, Bruyette & Woods,
Inc., Two World Trade Center, New York, New York 10048, Attention of
Emmett J. Daly, with a copy to Brown & Wood LLP, One World Trade Center, 58th
Floor, New York, New York 10048, Attention of Michael Kohler, Esq.; notices to
the Offerors shall be directed to First Commonwealth Financial Corporation, 22
North Sixth Street, Indiana, Pennsylvania 15701, Attention of Chief Financial
Officer, with a copy to Drinker Biddle & Reath LLP, One Logan Square, 18/th/ and
Cherry Streets, Philadelphia, Pennsylvania 19103, Attention of Robert M. Jones,
Jr., Esq.
24
<PAGE>
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Initial Purchaser and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Offerors and their respective successors and the
controlling persons and officers, directors and administrative trustees referred
to in Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Initial
Purchaser and the Offerors and their respective successors, and said controlling
persons and officers, directors and administrative trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Initial Purchaser shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
25
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchaser and the Offerors in accordance with its terms. The
execution and delivery of this Agreement by the Offerors and its acceptance,
execution and delivery by or on behalf of the Initial Purchaser may be evidenced
by an exchange of telecopied or other written communications.
Very truly yours,
FIRST COMMONWEALTH FINANCIAL
CORPORATION
By /s/ John J. Dolan
--------------------------------------
Name: John J. Dolan
-----------------------------------
Title: Senior Vice President & Chief
----------------------------------
Financial Officer
----------------------------------
FIRST COMMONWEALTH CAPITAL TRUST I
By FIRST COMMONWEALTH FINANCIAL
CORPORATION
as Sponsor
By /s/ John J. Dolan
--------------------------------------
Name: John J. Dolan
-----------------------------------
Title: Senior Vice President & Chief
----------------------------------
Financial Officer
----------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
KEEFE, BRUYETTE & WOODS, INC.
By /s/ Emmett J. Daly
----------------------------
Authorized Signatory
26
<PAGE>
SCHEDULE A
Number of Capital
Name of Initial Purchaser Securities
------------------------- --------------
Keefe, Bruyette & Woods, Inc....................... 35,000
------
Total.............................................. 35,000
======
Sch A-1
<PAGE>
EXHIBIT A
Opinion of Drinker Biddle & Reath LLP
A-1
<PAGE>
September 8, 1999
KEEFE, BRUYETTE & WOODS, INC.
Two World Trade Center
New York, New York 10048
Ladies and Gentlemen:
We have acted as special counsel to First Commonwealth Financial
Corporation, a Pennsylvania corporation (the "Company"), and First Commonwealth
Capital Trust I, a Delaware business trust (the "Trust"), in connection with the
execution and delivery of the Purchase Agreement dated as of September 2, 1999
(the "Purchase Agreement"), among the Company, the Trust and you as the Initial
Purchaser, and in connection with the consummation of the transactions
contemplated thereby to occur. This opinion is being delivered to you pursuant
to Section 5(a) of the Purchase Agreement at the closing thereunder that is
being held today (the "Closing"). Capitalized terms not defined herein shall
have the meanings assigned to them in the Purchase Agreement, except that as
used in this Opinion, the term "Operative Documents" means the Amended and
Restated Declaration of Trust by and among the Administrative Trustees (as
defined therein), The Chase Manhattan Bank, Chase Manhattan Bank Delaware and
the Company, the Series A Capital Securities Guarantee Agreement ("Capital
Securities Guarantee") by and between the Company and The Chase Manhattan Bank,
the Common Securities Guarantee Agreement executed by the Company, the
Registration Rights Agreement (the "Registration Rights Agreement") by and among
the Company, the Trust and you, the Indenture ("Indenture") by and between the
Company and The Chase Manhattan Bank, the Debenture Subscription Agreement
("Debenture Subscription Agreement") by and between the Company and the Trust,
and the Common Securities Subscription Agreement by and between the Company and
the Trust (the "Common Securities Agreement"), each such agreement dated as of
the date hereof.
In our capacity as special counsel to the Company and the Trust, we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of the Preliminary and Final Offering Memorandum, the Operative
Documents, the Capital Securities, and the Subordinated Debentures and such
corporate records and other agreements, documents and instruments, and such
certificates or comparable documents of public officials and officers and
representatives of the Trust, the Company and its subsidiaries, and have made
such inquiries of such officers and representatives and have considered such
matters of law as we have deemed appropriate as the basis for the opinions
hereinafter set forth.
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 2
In all cases, we have assumed the legal capacity of natural persons,
the genuineness of signatures, the authenticity of documents submitted as
originals, the conformity to authentic original documents of documents submitted
to us as copies and the accuracy and completeness of all corporate records and
other information made available to us by the Company and the Trust. We have
further assumed that the Purchase Agreement, each Operative Document, the
Capital Securities, and the Subordinated Debentures have been duly authorized,
executed and delivered by, and are the legal, valid and binding obligation of,
all parties thereto other than the Company and the Trust. In this regard, we
understand that you have received the opinions dated the date hereof of (i)
Richards, Layton & Finger P.A. (the "RLF Opinion") as to the formation of the
Trust, the authorization, execution, and delivery of the Operative Documents to
which it is a party by the Trust, the validity and binding nature of the
Operative Documents as to the Trust, the authorization and issuance of the
Capital Securities by the Trust and such other matters as you have requested and
(ii) David R. Tomb, Jr. as to certain matters relating to the Company and its
various subsidiaries. While we have reviewed these opinions and believe that you
are justified in relying upon them, we offer no opinion as to the matters
covered therein or thereby, except as expressly noted herein.
As to questions of fact material to this opinion and not independently
verified by us, we have relied exclusively upon the accuracy of the
representations and warranties made by the parties in the Purchase Agreement and
the Operative Documents and on certificates and other comparable documents of
officers and representatives of the Company and the Trust, upon statements made
to us in discussions with the Company's and the Trust's management and upon
certificates of public officials. Statements made herein "to the best of our
knowledge" or with respect to matters "known to us" are based solely on
information actually known to those lawyers currently practicing with this firm
and engaged in the representation of the Company and the Trust in connection
with the transactions contemplated by the Purchase Agreement and the Operative
Documents to occur at the Closing. Except as set forth herein, we have not
undertaken any independent investigation of factual matters.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, we are of the opinion that:
(a) The Company is a corporation validly subsisting under the
laws of the Commonwealth of Pennsylvania.
(b) The Company has the corporate power and authority to
conduct its business and to own, lease, and operate its properties as described
in the Final Offering Memorandum. The Company has the corporate power and
authority to enter into and perform its obligation under the Purchase Agreement
and the Operative Documents to which it is a party.
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 3
(c) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(d) Each of the First Commonwealth Bank and Southwest Bank
(collectively, the "Banks") is a corporation validly subsisting under the laws
of the Commonwealth of Pennsylvania. Each of the Banks has the corporate power
to own, lease, and operate its properties and to conduct its business as
described in the Final Offering Memorandum. Each of the Company's subsidiaries,
other than the Banks and Commonwealth Trust Credit Life Insurance Company, is a
corporation validly subsisting under the laws of the Commonwealth of
Pennsylvania.
(e) The stockholders of the Company, the Banks and the Company's
other subsidiaries (other than Commonwealth Trust Credit Life Insurance Company)
have no preemptive rights under the Pennsylvania Business Corporation Law of
1988, as amended, or the Company's articles of incorporation or bylaws.
(f) The Purchase Agreement and each of the Operative Documents
to which the Company is a party have been duly authorized, executed, and
delivered by the Company.
(g) The Subordinated Debentures and the Exchange Subordinated
Debentures, if any, have been duly authorized for issuance by the Company.
(h) Each of the Operative Documents to which it is a party
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether considered in a proceeding in equity or at law) (the
"Specified Exceptions").
(i) The Exchange Capital Securities Guarantee, would, if issued
on the date hereof, in the Exchange Offer as contemplated in the Registration
Rights Agreement constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
Specified Exceptions.
(j) The Subordinated Debentures and the Exchange Subordinated
Debentures, if any, have been duly authorized for issuance by the Company. The
Subordinated Debentures, when executed, authenticated and delivered in the
manner provided for in the Indenture and delivered against payment therefor as
contemplated by the Debenture Subscription Agreement, will be duly executed and
delivered by the Company and constitute valid and binding obligations
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 4
of the Company entitled to the benefits of the Indenture and will be
enforceable against the Company in accordance with their terms, subject to
the Specified Exceptions. The Exchange Subordinated Debentures, if any,
would, if executed and authenticated and delivered on the date hereof in
the manner provided for in the Indenture and issued in the Exchange Offer
as contemplated in the Registration Rights Agreement, constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and be enforceable against the Company in accordance with their
terms, subject to the Specified Exceptions.
(k) The form of Initial Securities are accurately described, in all
material respects, in the Final Offering Memorandum, and such description
is consistent, in all material respects, with the terms thereof set forth
in the instruments defining the same.
(l) The statements in the Offering Memorandum under the captions "The
Trust," "Description of Capital Securities." "Description of Junior
Subordinated Debentures," "Description of the Capital Securities Guarantee"
and "Relationship Among the Capital Securities, the Junior Subordinated
Debentures and the Capital Securities Guarantee," to the extent that such
statements constitute matters of law or legal conclusions, are accurate and
fairly present the information disclosed therein in all material respects.
(m) (A) Assuming that (i) each of the Trust's and the Company's
representations and warranties contained in Sections 1(i), (xxxvii) and
(xxxix) of the Purchase Agreement is true and correct and (ii) the Capital
Securities are sold in the manner contemplated by, and in accordance with,
the Agreement, the Declaration and the Final Offering Memorandum, it is not
necessary in connection with the offer, sale and delivery of the Capital
Securities by the Trust to register the Capital Securities under the
Securities Act of 1933, as amended, or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended, and (B) no filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required in connection with the execution or delivery by
the Company or the Trust of the Operative Documents or the performance by
the Company or the Trust of the transactions contemplated thereby, except
for such filings and approvals as may be necessary under federal or state
securities laws in connection with the Exchange Offer (as defined in the
Registration Rights Agreement) or a Shelf Registration Statement (as
defined in the Registration Rights Agreement).
(n) To the best of our knowledge, there are no statutes or
regulations, or any pending or threatened legal or governmental
proceedings, required to be described in the documents incorporated by
reference in the Final Offering Memorandum that are not described as
required.
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 5
(o) The descriptions in the Final Offering Memorandum of the statutes,
regulations, legal or governmental proceedings and the Operative Documents
therein described are accurate and fairly discuss in all material respects the
information shown.
(p) The execution and delivery of each of the Operative Documents, as
applicable, by the Company or the Trust, the issuance and delivery of the
Subordinated Debentures, the Capital Securities, the Common Securities and the
consummation by the Company and the Trust of the transactions contemplated by
the Operative Documents and the compliance by the Company and the Trust with the
terms of each of the Operative Documents, as applicable, (A) do not and will not
result in any violation of the Articles of Incorporation or Bylaws of the
Company and (B) and do not and will not conflict with, or result in a breach of,
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of, any lien, charge or encumbrance upon any property
or assets of the Trust or the Company or any of its subsidiaries under, (i) any
indenture, mortgage or loan agreement or any other agreement or instrument,
known to us, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries may be bound or to which any of
their properties may be subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise), (ii) any existing law, rule or regulation applicable to the
Company, the Trust or their respective assets or properties (other than the
securities or blue sky laws of the various states, as to which we express no
opinion), (iii) any judgment, order or decree known to us of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Company or its subsidiaries or any of their respective properties,
assets or operations, or (iv) the Declaration or the Certificate of Trust, dated
as of August 16, 1999, of the Trust certified by the Secretary of State of the
State of Delaware.
(q) Assuming that each of the Company and the Trust has complied, and
will comply, with each of its respective covenants contained in the Purchase
Agreement and the Operative Documents, and that each of the transactions
contemplated by the Final Offering Memorandum is consummated by the Company and
the Trust as described therein, neither the Company nor the Trust is, or
immediately following consummation of the transactions contemplated by the
Purchase Agreement will be, required to be registered under the Investment
Company Act of 1940, as amended.
(r) The documents incorporated by reference in the Final Offering
Memorandum (except for the financial statements, schedules and other financial,
statistical or accounting data included or incorporated by reference therin, as
to which we express no opinion) as of the dates they were filed with the
Securities and Exchange Commission and as of
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 6
the date of the Purchase Agreement, complied as to form in all material
respects to the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(s) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
(t) Under the Delaware Business Trust Act and the Declaration, the
Trust has the power and authority to (A) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a
party, (B) issue and perform its obligations under the Capital Securities,
the Exchange Capital Securities, if any, and the Common Securities and (C)
and hold the Subordinated Debentures and the Exchange Subordinated
Debentures, if any.
(u) The Declaration has been duly authorized, executed, and delivered
by the Company and constitutes a valid and binding obligation of the
Company and the Administrative Trustees and is enforceable against the
Company and such Administrative Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or coveyance, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or
by general equitable principles (regardless of whether considered in a
proceeding in equity or at law).
(v) The Capital Securities and the Exchange Capital Securities, if
any, have been duly authorized for issuance by the Trust; and the Capital
Securities when executed, authenticated and delivered in the manner
provided for in the Declaration and paid for in accordance with the
Agreement, and the Exchange Capital Securities, if any, when executed,
authenticated and delivered in the manner provided for in the Declaration
and issued in the Exchange Offer to the Exchange Capital Securities Holders
as contemplated in the Registration Rights Agreement, will be, subject to
the qualifications set forth in clause (w) below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
will entitle the holders thereof to the benefits of the Declaration, except
to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether considered in a proceeding in equity or at law).
(w) The holders of the Capital Securities and the Exchange Capital
Securities, if any, 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; it
being understood, however, that the holders of the Capital Securities and
the Exchange Capital Securities, if any, may be obligated, pursuant to the
Declaration, to (A) provide
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 7
indemnity and/or security in connection with and pay a sum sufficient to
cover taxes or governmental charges (or other expenses) arising from
transfers or exchanges of Capital Securities certificates or Exchange
Capital Securities certificates, if any, and the issuance of replacement
Capital Securities certificates and Exchange Capital Securities
certificates, if any, and (B) provide security and/or indemnity in
connection with requests of or directions to the Property Trustee and to
exercise its rights and powers under the Declaration.
(x) Under the Delaware Business Trust Act and the Declaration, the
issuances of the Capital Securities and the Exchange Capital Securities, if
any, will not be subject to preemptive rights.
(y) The Purchase Agreement and each of the Operative Documents to
which the Trust is a party has been duly authorized, executed and delivered
by the Trust.
Finally, we advise you that we have participated in conferences with
officers and other representatives of the Company and the Trust and the
Company's general counsel and accountants and representatives of the
Initial Purchaser at which the contents of the Offering Memorandum and
related matters were discussed, but we have not undertaken to investigate
or verify independently, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Offering Memorandum, other than those legal matters referred to in clauses
(k), (l) and (o) above. On the basis of the foregoing (relying as to
materiality to the extent we deemed appropriate upon the opinions of
officers and other representatives of the Company), we do not believe that
the Final Offering Memorandum, as of its date or the date hereof, contained
or contains an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(except that we express no view as to the financial statements and the
schedules and notes thereto or other financial or statistical data included
in (or incorporated by reference into) the Final Offering Memorandum).
The opinions above are limited to (i) the laws of the Commonwealth of
Pennsylvania and the federal laws of the United States of America, (ii) in
the case of our opinions in paragraphs (h), (i), and (j) relating to the
validity, binding nature, and enforceability of the Operative Documents
(other than the Registration Rights Agreement and the Common Securities
Subscription Agreement, which are discussed below). Subordinated
Debentures, Exchange Subordinated Debentures, and Exchange Capital
Securities Guarantee, the law of the State of New York and (iii) in the
case of our opinions in paragraphs (s), (t), (u), (v), (w), (x), and (y)
relating to the formation of the Trust, the authorization, execution and
delivery of the Operative Documents to which it is a party by the Trust,
the valid and binding nature of the
<PAGE>
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
September 8, 1999
Page 8
Operative Documents as to the Trust, the authorization and issuance of the
Capital Securities by the Trust and other related matters, the law of the
State of Delaware.
With respect to all matters of New York law, we have relied with your
approval exclusively upon the opinion of Akin, Gump, Strauss, Hauer & Feld
LLP ("AG Opinion") dated September 8, 1999 and attached hereto as Annex A.
Our opinions in paragraphs (h), (i), and (j) are subject to the same
assumptions, qualifications, and limitations with respect to the matters
contained therein as are contained in the AG Opinion. With respect to all
matters of Delaware law, we have relied with your approval exclusively upon
the RLF Opinion attached hereto as Annex B. To the extent that our opinions
in paragraphs (k) and (l) could be construed to constitute opinions as to
matters of Delaware law, we have relied upon RLF Opinion referred to above.
Our opinions in paragraphs (k) and (l), to the extent applicable, (p)(B)
(as such opinion relates to the Trust), (p)(C), (s), (t), (u), (v), (w),
(x) and (y) are subject to the same assumptions, qualifications, and
limitations with respect to the matters contained therein as are contained
in the RLF Opinion.
We note that each of the Registration Rights Agreement and the Common
Securities Subscription Agreement provides that it is governed by the laws
of the State of New York. We are not familiar with those laws and express
no opinion about them. With your permission, we have assumed solely for
purposes of this Opinion, that the Registration Rights Agreement and
Common Securities Subscription Agreement will be governed by the laws of
the Commonwealth of Pennsylvania notwithstanding their express terms. We
express no opinion about what law will actually govern such agreements.
We offer no opinion as to the state securities or "Blue Sky" laws or
as to the antitrust laws of any jurisdiction.
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Purchase Agreement and may not be
circulated to, or relied upon by, any other person. We further advise you
that the opinions given herein are given as of the date hereof, limited by
facts, circumstances, and laws in effect as of such date, and that by
rendering these opinions we undertake no obligation to advise you with
respect to any changes thereto.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
<PAGE>
EXHIBIT B
Form of Opinion of Richards, Layton & Finger P.A.
B-1
<PAGE>
[LETTERHEAD OF RICHARDS, LAYTON & FINGER APPEARS HERE]
September 8, 1999
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, NY 10048
Re: First Commonwealth Capital Trust I
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Commonwealth
Financial Corporation, a Pennsylvania corporation ("First Commonwealth"), and
First Commonwealth Capital Trust I. a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At you 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 August 16, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 16, 1999:
(b) The Declaration of Trust of the Trust, dated as of August 16,
1999, among First Commonwealth, as sponsor, and the trustees of the Trust named
therein:
(c) The Amended and Restated Declaration of Trust of the Trust, dated
as of September 8, 1999 (including Annex I and Exhibits A-1 and A-2 thereto)
(the "Declaration"), among First Commonwealth, as sponsor, the trustees of the
Trust named therein (the "Trustees") and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust:
<PAGE>
Keefe, Bruyette & Woods, Inc.
September 8, 1999
Page 2
(d) The Purchase Agreement, dated September 2, 1999 (the "Purchase
Agreement"), among First Commonwealth, the Trust and Keefe, Bruyette & Woods,
Inc. (the "Initial Purchaser");
(e) The Registration Rights Agreement, dated September 8, 1999 (the
"Registration Agreement"), among First Commonwealth, the Trust and the Initial
Purchaser;
(f) The Debenture Subscription Agreement, dated as of September 8,
1999 (the "Debenture Agreement"), between First Commonwealth and the Trust;
(g) The Common Securities Subscription Agreement, dated as of
September 8, 1999 (the "Common Securities Agreement"), between First
Commonwealth and the Trust;
(h) The Offering Memorandum, dated September 2, 1999, (the
"Offering Memorandum"), relating to the 9.50% Series A Capital Securities of the
Trust, representing undivided beneficial interests in the assets of the Trust
(each, a "Capital Security" and collectively, the "Capital Securities"); and
(i) A Certificate of Good Standing for the Trust, dated September
8, 1999, obtained from the Secretary of State.
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 or referred to in paragraphs (a) through (i)
above. In particular, we have not reviewed any document (other than the
documents listed or referred to in paragraphs (a) through (i) 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 constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Declaration and the
Certificate are in full force and effect, have not been amended and no amendment
of the Declaration or the Certificate is pending or has been proposed, (ii)
except to
<PAGE>
Keefe, Bruyette & Woods, Inc.
September 8, 1999
Page 3
the extent provided in paragraph 1 below, that each of the parties to the
documents examined by us has been duly created, formed, or organized, as the
case may be, and is validly existing in good standing under the laws of the
jurisdiction governing its creation, formation or organization, (iii) the legal
capacity of each natural person who is a party to the documents examined by us,
(iv) except to the extent set forth in paragraph 2 below, that each of the
parties to the documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such documents, (v) except to
the extent provided in paragraph 3 below, that each of the parties to the
documents examined by us has duly authorized, executed and delivered such
documents, (vi) the receipt by each Person to whom a Capital Security is to be
issued by the Trust (the "Capital Security Holders") of a Capital Securities
Certificate (substantially in the form attached to the Declaration as Exhibit
A-1) for the Capital Security and the payment for the Capital Security acquired
by it, in accordance with the Declaration, and as described in the Offering
Memorandum, (vii) that the Capital Securities are issued and sold to the Capital
Security Holders in accordance with the Declaration, and as described in the
Offering Memorandum, (viii) the receipt by the Persons (the "Exchange Security
Holders") to whom a Series B Capital Security of the Trust representing common
undivided beneficial interests in the assets of the Trust (each, an "Exchange
Security" and collectively, the "Exchange Securities") of a Capital Securities
Certificate (substantially in the form attached to the Declaration as Exhibit
A-1) for the Exchange Security and the payment for the Exchange Security
acquired by it, in accordance with the Declaration, and as described in the
Offering Memorandum, (ix) that the Exchange Securities are issued and sold to
the Exchange Security Holders in accordance with the Declaration, and as
described in the Offering Memorandum, (x) that the Trust derives no income from
or connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the Business
Trust Act, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and filing
------- -- ---
documents with the Secretary of State) or employees in the State of Delaware,
and (xi) that the Trust is treated as a grantor trust for federal income tax
purposes. We have not participated in the preparation of the Offering
Memorandum 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
<PAGE>
Keefe, Bruyette & Woods, Inc.
September 8, 1999
Page 4
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the 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.
2. Under the Business Trust Act and the Declaration, the Trust has
the trust power and authority (a) to execute and deliver, and to perform its
obligations under, the Purchase Agreement, the Registration Agreement, the
Debenture Agreement and the Common Securities Agreement, (b) to issue and
perform its obligations under the Capital Securities, the Exchange Capital
Securities and the Common Securities, and (c) to purchase and hold the
Subordinated Debentures and the Exchange Subordinated Debentures (as defined in
the Purchase Agreement).
3. Under the Business Trust Act and the Declaration, the execution
and delivery by the Trust of the Purchase Agreement, the Registration Agreement,
the Debenture Agreement and the Common Securities Agreement and the performance
by the Trust of its obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
4. The Declaration constitutes a valid and binding obligation of
First Commonwealth and the Trustees, and is enforceable against First
Commonwealth and the Trustees, in accordance with its terms.
5. The Capital Securities have been duly authorized by the
Declaration and are duly and validly issued and are, and the Exchange Capital
Securities, when duly executed, authenticated and delivered in the manner
provided in the Declaration and issued in the Exchange Offer to the Exchange
Security Holders as contemplated by the Registration Agreement, will be, subject
to the qualifications set forth herein, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. The Capital Security Holders
and the Exchange Security Holders will be entitled to the benefits of the
Declaration and, as beneficial owners of the Trust, are 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 and the Exchange Security
Holders may be obligated, pursuant to the Declaration, to (a) provide indemnity
and/or security in connection with and pay a sum sufficient to cover taxes or
governmental charges (or other expenses) arising from transfers or exchanges of
Capital Securities certificates or Exchange Securities certificates, and the
issuance of replacement Capital Securities certificates or Exchange Securities
certificates, and (b) provide security and/or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights and
powers under the Declaration. Under the Business Trust Act and the Declaration,
the issuance of the Capital Securities and Exchange Securities is not subject to
preemptive or other similar rights.
<PAGE>
Keefe, Bruyette & Woods, Inc.
September 8, 1999
Page 5
6. The issuance and sale by the Trust of the Securities, the
execution, delivery and performance by the Trust of the Purchase Agreement, the
Registration Agreement, the Debenture Agreement and the Common Securities
Agreement, the consummation by the Trust of the transactions contemplated
therein and the compliance by the Trust with its obligations thereunder do not
violate (a) any of the provisions of the Certificate or the Declaration or (b)
any applicable Delaware law or Delaware administrative regulation.
7. No filing or registration with, or authorization, approval,
consent, license, order, qualification or decree of, any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely as a result of the issuance and sale of the Capital Securities,
the execution, delivery and performance by the Trust of the Purchase Agreement,
the Registration Agreement, the Debenture Agreement and the Common Securities
Agreement, the consummation by the Trust of the transactions contemplated in
Purchase Agreement, the Registration Agreement, the Debenture Agreement and the
Common Securities Agreement or the compliance by the Trust of its obligations
thereunder.
8. The Capital Security Holders (other than those Capital Security
Holders who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware.
9. Under the Business Trust Act, the forms of certificates attached
to the Declaration as Exhibits A-1 and A-2 are appropriate forms of certificates
to evidence ownership of the Capital Securities and the Common Securities,
respectively.
The opinions expressed in paragraph 4 above are subject, as to
enforcement, to the effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Purchase Agreement. We also consent to Brown &
Wood LLP's and Drinker Biddle & Reath LLP's relying as to matters of Delaware
law upon this opinion in connection with opinions to be rendered by them on the
date hereof pursuant to the Purchase Agreement. In addition, we consent to The
Chase Manhattan Bank's and Chase Manhattan Bank Delaware's relying as to
matters of Delaware law upon this opinion in connection with the matters set
forth
<PAGE>
Keefe, Bruyette & Woods, Inc.
September 8, 1999
Page 6
herein. 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 PA
<PAGE>
EXHIBIT C
Form of Opinion of Pryor Cashman Sherman & Flynn LLP
C-1
<PAGE>
[LETTERHEAD OF PRYOR CASHMAN SHERMAN & FLYNN LLP APPEARS HERE]
September 8, 1999
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
85/th/ Floor
New York, New York 10048
First Commonwealth Financial
Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Re: First Commonwealth Capital Trust I
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank ("CMB") in
connection with the execution and delivery by CMB, (i) as property trustee (in
such capacity, the "Property Trustee"), under the Amended and Restated
Declaration of Trust dated as of September 8, 1999 (the "Declaration") among
First Commonwealth Financial Corporation, as Sponsor, John J. Dolan, R. John
Previte and Gerard M. Thomchick, as Administrative Trustees, Chase Manhattan
Bank Delaware, as Delaware Trustee, the Property Trustee and the several holders
of the 9.50% Capital Securities due September 1, 2029 issued thereunder, (ii) as
trustee (in such capacity, the "Indenture Trustee") under the Indenture dated as
of September 8, 1999 (the "Indenture") between First Commonwealth Financial
Corporation and the Indenture Trustee, and (iii) as capital securities guarantee
trustee (in such capacity, the "Guarantee Trustee") under the Series A Capital
Securities Guarantee Agreement dated as of September 8, 1999 (the "Guarantee")
between First Commonwealth Financial Corporation and the Guarantee Trustee.
Unless otherwise defined herein, capitalized terms used herein shall have the
same meaning ascribed to them in the Declaration.
We have examined the Declaration, the Indenture and the Guarantee and
originals or photostatic or certified copies of such records of the CMB,
certificates of officers of CMB and of public officials, and such other
documents as we have deemed relevant and necessary as the basis for the
opinions set forth below. In such examination we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the
<PAGE>
Keefe, Bruyette & Woods, Inc.
First Commonwealth Financial
Corporation
September 8, 1999
Page 2
authenticity of the originals of such latter documents. As to questions of fact
material to our opinion, we have relied, without independent investigation or
verification, upon statements of fact contained in the documents which we have
examined. In rendering the opinions set forth below, we have assumed the due
authorization, execution and delivery by the parties thereto (other than CMB) of
all documents referred to herein.
We are admitted to the Bar in the State of New York and we express no
opinion as to the laws of any other jurisdiction, except the laws of the United
States of America.
On the basis of the foregoing, we advise you that in our opinion:
1. CMB has been duly incorporated and is validly existing as a banking
corporation in good standing under the laws of the State of New York.
2. CMB has full corporate trust power and authority to enter into and
perform its obligations under the Declaration, the Indenture and the Guarantee.
3. Each of the Declaration, the Indenture and the Guarantee has been duly
authorized by all necessary action and has been duly, executed and delivered by
CMB and constitutes a valid and legally binding agreement of CMB, enforceable
against CMB in accordance with its terms, subject, as to enforcement of
remedies, (a) to applicable bankruptcy, insolvency, reorganization, and other
similar laws affecting the rights of creditors generally, and (b) to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4. The execution and delivery by CMB of the Declaration, the Indenture
and the Guarantee and the performance by CMB of its obligations thereunder do
not conflict with or result in a violation of the Organization Certificate or
By-laws of CMB.
5. No consent, approval or authorization of, or registration or filing
with, any court or governmental agency or body of the United States of America
or the State of New York having jurisdiction over the trust powers of CMB is
required for the consummation on the part of CMB of any of the transactions
contemplated in the Declaration, the Indenture or the Guarantee, except such as
have been obtained.
With respect to the opinions expressed in paragraph 1 above, we have not
made any independent investigation of the matters covered thereby, but have
relied exclusively upon the
<PAGE>
Keefe, Bruyette & Woods, Inc.
First Commonwealth Financial
Corporation
September 8, 1999
Page 3
certificate dated September 3, 1999 of the Banking Department of the State of
New York, a copy of which is attached hereto (the "Banking Certificate"). For
purposes of the opinion expressed in paragraphs 2 and 5 above, we have assumed
in reliance exclusively, without independent investigation or verification, upon
the Banking Certificate, that CMB has all rights, power and authority permitted
to trust companies under Article III of the Banking Law of the State of New
York.
Except as set forth below, the opinions set forth herein are expressed
solely for your benefit, and may not, without our express written consent, be
relied upon by any other person.
Very truly yours,
<PAGE>
State of New York
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New
York, DO HEREBY CERTIFY:
THAT, THE CHASE MANHATTAN BANK, is a corporation duly organized and
existing under the laws of the State of New York and has its principal office
and place of business at 270 Park Avenue, New York, New York. Such corporation
is validly existing as a banking organization under the Banking Law of the State
of New York. The authorization certificate of such corporation has not been
revoked or suspended and such corporation is a subsisting trust company under
the supervision of this Department.
WITNESS, my hand and official seal of the Banking Department at the City of New
York, this 3/rd/ day of September in the Year of Our Lord one thousand
nine hundred and ninety-nine
/s/ P. Vincent Conlon
--------------------------------
Deputy Superintendent of Banks.
<PAGE>
[LETTERHEAD OF CHASE APPEARS HERE]
September 8, 1999
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
85/th/ Floor
New York, New York 10048
First Commonwealth Financial
Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
RE: First Commonwealth Capital Trust I
Gentlemen:
I am a Vice President, Secretary and Counsel of Chase Manhattan Bank Delaware, a
Delaware banking corporation ("CMBD"). As such counsel, I have made such legal
and factual examinations and inquiries, and have reviewed such documents,
corporate records, certificates of corporate officers and other instruments of
CMBD as I considered necessary for the purposes of the opinions herein.
On the basis of the foregoing, and subject to the qualifications contained
herein, I am of the opinion that CMBD has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of Delaware and is duly authorized and empowered to exercise trust powers under
applicable Delaware law and to enter into, execute and deliver agreements
whereby it is obligated to act as a corporate trustee or to perform fiscal and
transfer agency functions.
I am licensed to practice law in the State of Delaware, and, therefore, the
foregoing opinion is limited to the laws of the State of Delaware and the
federal law of the United States of America in effect on the date hereof, and no
opinion is expressed herein as to any matter governed by the laws of any other
jurisdiction.
Messrs. Pryor Cashman Sherman & Flynn LLP may rely on this opinion in connection
with their opinion delivered to you today. This opinion is limited to the
matters expressly set forth, and no opinion is implied or may be inferred beyond
the expressed stated herein.
Very truly yours,
/s/ David J. Clark
David J. Clark
Vice President
Secretary & Counsel
<PAGE>
EXHIBIT D
Opinion of David R. Tomb, Jr., Esq.
D-1
<PAGE>
[LETTERHEAD OF FIRST COMMONWEALTH FINANCIAL CORPORATION APPEARS HERE]
September 8, 1999
KEEFE, BRUYETTE & WOODS, INC.
Two World Trade Center
New York, NY 10048
Ladies and Gentlemen:
I am Senior Vice President, Secretary, and Treasurer of First Commonwealth
Financial Corporation, a Pennsylvania corporation (the "Company"). I am giving
this opinion in connection with the execution and delivery of the Purchase
Agreement dated as of September 2, 1999 (the "Purchase Agreement") among the
Company, First Commonwealth Capital Trust I (the "Trust") and you as the Initial
Purchaser, and in connection with the consummation of the transactions
contemplated thereby. This opinion is being delivered to you pursuant to Section
5(e) of the Purchase Agreement at the Closing thereunder that is being held
today (the "Closing"). Capitalized terms not defined herein have the meanings
assigned to them in the Purchase Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of the Preliminary and Final Offering Memorandum, the Purchase
Agreement, the Initial Securities, and the Operative Documents, and such
corporate records and other agreements, documents and instruments, and such
certificates or comparable documents of public officials and officers and
representatives of the Trust, the Company and its subsidiaries, and have made
such inquiries of such officers and representatives and have considered such
matters of law as I have deemed appropriate as the basis for the opinions
hereinafter set forth.
In all cases, I have assumed the legal capacity of natural persons, the
genuineness of signatures, the authenticity of documents submitted as originals,
the conformity to authentic original documents of documents submitted to me as
copies and the accuracy and completeness of all corporate records and other
information made available to me by the Company and the Trust. I have further
assumed that the Purchase Agreement, each of the Operative Documents, the
Capital Securities, and the Subordinated Debentures has been duly authorized,
executed and delivered by, and is the legal, valid and binding obligation of,
all parties thereto
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
Page 2
As to questions of fact material to this opinion not independently verified
by me, I have relied exclusively upon the accuracy of the representations and
warranties made by the parties in the Purchase Agreement and the Operative
Documents and on certificates and other comparable documents of officers and
representatives of the Company and the Trust, upon statements made to me in
discussions with the Company's and the Trust's management and upon certificates
of public officials. Statements made herein "to the best of my knowledge" or
with respect to matters "known to me" are based solely on information actually
known to me in connection with the transactions contemplated by the Purchase
Agreement and the Operative Documents to occur at the Closing. Except as
otherwise set forth herein, I have not undertaken any independent investigation
of actual matters.
My opinions as to the capitalization of the Company, the Banks (as defined
herein) and the Company's other subsidiaries, the authorization, issuance, and
ownership of the capital stock of the Company, the Banks and the Company's other
subsidiaries, and the absence of pledges, liens, encumbrances, claims, equities
or contractual preemptive rights pertaining to such capital stock is based
solely upon my review of the corporate records of the Company, the Banks and the
Company's other subsidiaries.
I understand that you are receiving opinions of Drinker Biddle & Realth
LLP, special counsel to the Company and the Trust, Aiken, Gump, Strauss, Hauer &
Feld LLP, special New York counsel to the Company and the Trust, and Richards,
Layton & Finger P.A., special Delaware counsel to the Company and the Trust,
dated the date hereof. While I have reviewed those opinions and believe that you
are justified in relying upon them, I offer no opinion as to any of the matters
covered therein or thereby.
Based on the foregoing, and subject to the qualifications, limitations and
assumptions stated herein, I am of the following opinion:
(a) The Company has the corporate authority to own, lease and operate its
properties and to conduct its business as described in the Final Offering
Memorandum.
(b) The Company possesses the foreign qualifications and all material
approvals, authorizations, orders, licenses, certificates, and permits necessary
to own, lease and operate its properties and to conduct its business, as
described in the Final Offering Memorandum, except to the extent that the
failure to have such qualifications and approvals, authorizations, orders,
licenses, certificates and permits
<PAGE>
KEEFE BRUYETTE & WOODS, INC.
Page 3
would not have a material adverse effect on the condition (financial or
otherwise) or earnings, business affairs, or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(c) The Company had at the date indicated in the Final Offering Memorandum
a duly authorized capitalization as set forth in the Final Offering Memorandum;
all of the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable by the
Company; and, to my knowledge, the stockholders of the Company have no
contractual preemptive rights.
(d) Each of First Commonwealth Bank and Southwest Bank (collectively, the
"Banks") has the respective corporation power and authority to own, lease, and
operate its properties and to conduct business as described in the Final
Offering Memorandum, and the foreign qualifications and all material approvals,
authorizations, orders, licenses, certificates and permits necessary to own,
lease and operate its properties and to conduct its business, as described in
the Final Offering Memorandum, except where the failure to have such authority,
qualifications, approvals, authorizations, orders, licenses, certificates or
permits would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise; all of the issued and
outstanding capital stock of each Bank has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Company, directly or
through a subsidiary, free and clear of any security interest, mortgage, pledge,
lien, claim, charge, equity or encumbrance of any kind; and none of such shares
was issued in violation of the preemptive rights of any stockholder or
warrantholder of any such Bank.
(e) Each of the Company's subsidiaries other than the Banks and
Commonwealth Trust Credit Life Insurance Company, to the extent applicable, is
duly qualified as a foreign corporation to transact business in each
jurisdiction in which such qualification is required, except for such
jurisdictions where the failure to be so qualified would not have a material
adverse effect on the business, financial condition, income or business
prospects of the Company and its consolidated subsidiaries, considered as one
enterprise; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
nonassessable: except as set forth or incorporated by reference in the Offering
Memorandum, the capital stock of each such subsidiary is owned by the Company,
free and clear of any pledge, lien, encumbrance, claim or equity
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
Page 4
(f) There are no contracts or documents known to me of a character required
to be described or referred to in the documents incorporated by reference in the
Final Offering Memorandum that are not described or referred to as required. The
descriptions in the Final Offering Memorandum of the contracts and other
documents therein described are accurate and fairly discuss in all material
respects the information shown.
(g) To my knowledge, no default by the Company or the Trust exists in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, loan agreement, note, lease or
other agreement or instrument that is specifically described or referred to in
the Final Offering Memorandum or known to me.
(h) The execution and delivery of each of the Operative Documents, as
applicable, by the Company or the Trust, the issuance and delivery of the
Subordinated Debentures, the Capital Securities, the Common Securities and the
consummation by the Company and the Trust of the transactions contemplated by
the Operative Documents and compliance by the Company and the Trust with the
terms of each of the Operative Documents, as applicable, (A) do not and will not
result in any violation of the Articles of Incorporation or Bylaws of the Banks,
and (B) do not and will not conflict with, or result in a breach of, any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of, any lien, charge or encumbrance upon any property or assets of
the Trust or the Company or any of its subsidiaries under, (i) any indenture,
mortgage or loan agreement or any other agreement or instrument known to me to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries may be bound or to which any of their properties may
be subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise), or (ii) any
judgment, order or decree of any government, governmental instrumentality or
court, domestic or foreign known to me and having jurisdiction over the Company
or its subsidiaries of any of their respective properties, assets or operations.
In the course of my representation of the Company, I have generally
reviewed and discussed the contents of the Offering Memorandum with certain
officers and employees of the Company and with the Company's internal counsel
and accountants, but have not independently verified, and am not passing upon,
and do not assume any responsibility for, the accuracy, completeness or
fairness of any of the statements
<PAGE>
KEEFE, BRUYETTE & WOODS, INC.
Page 5
contained in the Offering Memorandum, except as set forth above in
paragraph (f). Nothing, however, has come to my attention that would lead
me to believe that the Offering Memorandum (other than the financial
statements, schedules and other financial statistical or accounting data
included or incorporated by reference therein or omitted therefrom, as to
which I express no view), as of its date or the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
I express no opinion concerning the laws of any jurisdiction other
than the law of the Commonwealth of Pennsylvania, and the federal law of
the United States of America (except as herein provided), and I express no
opinion on the "blue sky" laws of any jurisdiction, or on the antitrust
laws of any jurisdiction or on the enforceability of any choice of law
provision.
This letter is furnished by me solely for your benefit in connection
with the transactions referred to in the Purchase Agreement and may not be
circulated to, or relied upon by, any other person. I further advise you
that the opinions given herein are given as of the date hereof, limited by
facts, circumstances, and laws in effect as of such date, and that by
rendering these opinions I undertake no obligation to advise you with
respect to any changes thereto.
Very truly yours,
/s/ David R. Tomb. Jr.
David R. Tomb. Jr.
<PAGE>
EXHIBIT 4.9
=========================================================
SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
First Commonwealth Financial Corporation
Dated as of September 8, 1999
=========================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation............................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application..........................................................6
SECTION 2.2 Lists of Holders of Securities............................................................6
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee.......................................6
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee..................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent..........................................7
SECTION 2.6 Events of Default; Waiver.................................................................7
SECTION 2.7 Event of Default; Notice..................................................................7
SECTION 2.8 Conflicting Interests.....................................................................8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL
SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee.............................8
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee...................................10
SECTION 3.3 Not Responsible for Recitals or Issuance of Series A Capital Securities Guarantee........12
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility........................................12
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities Guarantee Trustee.............13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee................................................................................13
SECTION 5.2 Waiver of Notice and Demand..............................................................14
SECTION 5.3 Obligations Not Affected.................................................................14
SECTION 5.4 Enforcement of Guarantee; Rights of Holders..............................................15
SECTION 5.5 Guarantee of Payment.....................................................................15
SECTION 5.6 Subrogation..............................................................................15
SECTION 5.7 Independent Obligations..................................................................16
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions...............................................................16
SECTION 6.2 Ranking..................................................................................17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination..............................................................................17
ARTICLE VIII
COMPENSATION AND EXPENSES OF CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses................................................................18
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation..............................................................................18
SECTION 9.2 Indemnification..........................................................................19
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns...................................................................19
SECTION 10.2 Amendments...............................................................................19
SECTION 10.3 Notices..................................................................................19
SECTION 10.4 Exchange Offer...........................................................................21
SECTION 10.5 Benefit..................................................................................21
SECTION 10.6 Counterparts.............................................................................21
SECTION 10.7 Governing Law............................................................................21
</TABLE>
ii
<PAGE>
SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series A Capital Securities
Guarantee"), dated as of September 8, 1999, is executed and delivered by First
Commonwealth Financial Corporation, a Pennsylvania corporation (the
"Guarantor"), and The Chase Manhattan Bank , a New York banking corporation, as
trustee (the "Capital Securities Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series A Capital Securities
(as defined herein) of First Commonwealth Capital Trust I, a Delaware statutory
business trust (the "Issuer").
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of September 8, 1999, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer (A) is issuing on
the date hereof 25,000 capital securities, having an aggregate liquidation
amount of $25,000,000 and (B) may issue in the future up to a further 10,000
capital securities, having an aggregate liquidation amount of $10,000,000
pursuant to the Purchase Agreement (as defined in the Declaration), such capital
securities being designated the 9.50% Series A Capital Securities (collectively
the "Series A Capital Securities") and, in connection with an Exchange Offer (as
defined in the Declaration), has agreed to execute and deliver the Series B
Capital Securities Guarantee (as defined in the Declaration) for the benefit of
holders of the Series B Capital Securities (as defined in the Declaration); and
WHEREAS, as incentive for the Holders to purchase the Series A Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series A Capital Securities Guarantee, to pay to
the Holders the Guarantee Payments (as defined below) and to make certain other
payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee"), with substantially identical
terms to this Series A Capital Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated, to the extent and in the
manner set forth in the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities and the Series B Capital Securities to receive
Guarantee Payments under this Series A Capital Securities Guarantee and the
Series B Capital Securities Guarantee, as the case may be;
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Series A Capital Securities Guarantee for
the benefit of the Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Series A Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series A Capital Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as of the date of execution of
this Series A Capital Securities Guarantee have the same meaning
when used in this Series A Capital Securities Guarantee unless
otherwise defined in this Series A Capital Securities Guarantee;
(c) a term defined anywhere in this Series A Capital Securities
Guarantee has the same meaning throughout;
(d) all references to "the Series A Capital Securities Guarantee" or
"this Series A Capital Securities Guarantee" are to this Series A
Capital Securities Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Series A Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series
A Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Series A Capital Securities Guarantee, unless
otherwise defined in this Series A Capital Securities Guarantee
or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
------------
day on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
"Capital Securities Guarantee Trustee" means The Chase Manhattan Bank,
------------------------------------
a New York banking corporation, until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Series A Capital
2
<PAGE>
Securities Guarantee and thereafter means each such Successor Capital Securities
Guarantee Trustee.
"Common Securities" means the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Securities
----------------------
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 450 West 33/rd/ Street, 15/th/ Floor, New York, New York 10001.
"Covered Person" means any Holder or beneficial owner of Series A
--------------
Capital Securities.
"Debentures" means the series of subordinated debt securities of the
----------
Guarantor designated the 9.50% Series A Junior Subordinated Deferrable Interest
Debentures due 2029 held by the Property Trustee (as defined in the Declaration)
of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Series A Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Series A Capital Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Series A Capital Securities to the extent the Issuer has funds on hand
legally available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent the Issuer has funds on hand legally available
therefor at such time, with respect to any Series A Capital Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Series A
Capital Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Series A Capital Securities to the date of payment, to the extent the
Issuer has funds on hand legally available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer. If an Event of Default has occurred and is
continuing, no Guarantee Payments under the Common Securities Guarantee with
respect to the Common Securities or any guarantee payment under any Other Common
Securities Guarantees shall be made until the Holders shall be paid in full the
Guarantee Payments to which they are entitled under this Series A Capital
Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records
------
of the Issuer, of any Series A Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Series A Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
3
<PAGE>
"Indemnified Person" means the Capital Securities Guarantee Trustee,
------------------
any Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of September 8, 1999, among
---------
the Guarantor (the "Debenture Issuer") and The Chase Manhattan Bank , as
trustee, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Series A Capital Securities"
-----------------------------------------------------------------
means, except as provided by the Trust Indenture Act, a vote by Holder(s) 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 Series A Capital Securities.
"Officers' Certificate" means, with respect to any person, a
---------------------
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Financial Officer, the
Secretary or an Assistant Secretary, of the Guarantor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series A Capital Securities Guarantee (other than pursuant to Section
314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
----------------------------------
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
----------------
the Guarantor from time to time and sold to trusts, in each case similar to the
Issuer, to be established by the Guarantor (if any).
"Other Guarantees" means all guarantees to be issued by the Guarantor
----------------
with respect to capital securities (if any) similar to the Series A Capital
Securities issued by other trusts, in each case similar to the Issuer, to be
established by the Guarantor (if any).
4
<PAGE>
"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.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of September 8, 1999, by and among the Guarantor, the Issuer
and the Initial Purchaser named therein as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" means, when used with respect to the Capital
-------------------
Securities Guarantee Trustee, any officer of the Capital Securities Guarantee
Trustee with direct responsibility for the administration of this Capital
Securities Guarantee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Successor Capital Securities Guarantee Trustee" means a successor
----------------------------------------------
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" means the Common Securities and the Series A
----------------
Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Series A Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series A Capital Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Series A Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 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 Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and addresses
of the Holders ("List of Holders") as of such date, (i) within one Business Day
after June 1 and December 1 of each year, and (ii) at any other time within 30
days of receipt by the Guarantor of a written request for a List of Holders as
of a date no more
5
<PAGE>
than 14 days before such List of Holders is given to the Capital Securities
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 Capital Securities Guarantee Trustee by
the Guarantor. The Capital Securities Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
---------------------------------------------------
Within 60 days after May 15 of each year, commencing May 15, 2000, the
Capital Securities Guarantee Trustee shall provide to the Holders such reports
as are required by Section 313(a) of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture Act. The
Capital Securities Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee
--------------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section 314 (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 provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
Guarantor. Delivery of such reports, information and documents to the Capital
Securities Guarantee Trustee is for informational purposes only and the Capital
Securities Guarantee Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Capital Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Series A Capital Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Series A Capital
Securities may, by vote, on behalf of all the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Series A Capital
6
<PAGE>
Securities Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Capital Securities Guarantee Trustee shall, within 60 days
after the occurrence of a default with respect to this Capital Securities
Guarantee, mail by first class postage prepaid, to all Holders, notices of all
defaults actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of default in the payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Capital Securities Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the holders of the
Series A Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice from the Guarantor or a Holder, or a
Responsible Officer of the Capital Securities Guarantee Trustee shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in this
Series A Capital Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee
-------------------------------------------------------------
(a) This Series A Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders, and the
Capital Securities Guarantee Trustee shall not transfer this Series A Capital
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Capital Securities Guarantee
Trustee on acceptance by such Successor Capital Securities Guarantee Trustee of
its appointment to act as Successor Capital Securities Guarantee Trustee. The
right, title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Capital Securities Guarantee Trustee.
7
<PAGE>
(b) If an Event of Default actually known to a Responsible Officer of
the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Series A Capital
Securities Guarantee for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Series A Capital Securities Guarantee, and no implied
covenants shall be read into this Series A Capital Securities Guarantee against
the Capital Securities Guarantee Trustee. In case an 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 Capital Securities Guarantee
Trustee, the Capital Securities Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Series A Capital Securities Guarantee,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Series A Capital Securities Guarantee shall
be construed to relieve the Capital Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Series A Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Series A Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series A Capital
Securities Guarantee against the Capital Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Capital Securities Guarantee Trustee and
conforming to the requirements of this Series A Capital Securities
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Capital Securities Guarantee Trustee, the Capital Securities
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Series A Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Capital Securities
8
<PAGE>
Guarantee Trustee, unless it shall be proved that the Capital Securities
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Capital Securities 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 a Majority in
liquidation amount of the Series A Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Capital Securities Guarantee Trustee, or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under this Series A
Capital Securities Guarantee; and
(iv) no provision of this Series A Capital Securities Guarantee shall
require the Capital Securities 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
Capital Securities 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 Series A Capital Securities Guarantee
or indemnity, reasonably satisfactory to the Capital Securities Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
(e) This Series A Capital Securities Guarantee and all moneys
received by the Capital Securities Trustee hereunder in respect of the Guarantee
Payments will not be subject to any right, charge, security interest, loan or
claim of any kind in favor of or for the benefit of the Capital Securities
Guarantee Trustee or its agents or creditors.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
------------------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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
Series A Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Series A Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
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.
9
<PAGE>
(iv) The Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Capital Securities Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such written advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Capital Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Series A Capital Securities Guarantee
from any court of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series A Capital Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Capital Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Capital
Securities 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
Capital Securities Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Capital Securities
Guarantee Trustee, upon the occurrence of an Event of Default which has not
been cured or waived, of its obligation to exercise the rights and powers
vested in it by this Series A Capital Securities Guarantee and to use the
same degree of care and shall in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(vii) The Capital Securities 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 Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
Capital Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No
10
<PAGE>
third party shall be required to inquire as to the authority of the Capital
Securities Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Series A Capital Securities Guarantee,
both of which shall be conclusively evidenced by the Capital Securities
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series A Capital
Securities Guarantee the Capital Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Capital Securities
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Series A Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) The Capital Securities Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Series
A Capital Securities Guarantee.
(b) No provision of this Series A Capital Securities Guarantee shall
be deemed to impose any duty or obligation on the Capital Securities 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 Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Capital Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series A Capital
------------------------------------------------------------
Securities Guarantee
--------------------
The recitals contained in this Series A Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Capital Securities Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series A Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
-------------------------------------------------
(a) There shall at all times be a Capital Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
11
<PAGE>
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 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 Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
----------------------------------------------------------
Guarantee Trustee
-----------------
(a) Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee and
delivered to the Guarantor and to the Capital Securities Trustee being removed.
(c) The Capital Securities Guarantee Trustee shall hold office until
a Successor Capital Securities Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Securities Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Securities Guarantee Trustee.
12
<PAGE>
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Capital
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Capital Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Series A Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
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 Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Series A
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Series A Capital Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Series A Capital Securities to be
performed or observed by the Issuer;
13
<PAGE>
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Series A Capital Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Series A Capital 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 permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series A Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series A
Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred;
(g) the consummation of the Exchange Offer; or
(h) 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 with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Holders
-------------------------------------------
(a) The Holders of a Majority in liquidation amount of the Series A
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Series A Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series A Capital Securities Guarantee provided, however,
-------- -------
that, subject to Section 3.1, the Capital Securities Guarantee Trustee shall
have the right to decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Capital
Securities Guarantee Trustee being advised by counsel
14
<PAGE>
determines that the action or proceeding so directed may not lawfully be taken
or if the Capital Securities Guarantee Trustee shall determine, in good faith by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers, that the action or
proceedings so directed would involve the Capital Securities Guarantee Trustee
in personal liability.
(b) If the Capital Securities Guarantee Trustee fails to enforce such
Series A Capital Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Capital Securities
Guarantee Trustee's rights under this Series A Capital Securities Guarantee,
without first instituting a legal proceeding against the Issuer, the Capital
Securities Guarantee Trustee or any other person or entity. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Series A Capital Securities 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 against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Series A Capital Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Series A Capital
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series A Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series A
Capital Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this Series
A Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
15
<PAGE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
So long as any Capital Securities remain outstanding, the Guarantor
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock (which includes common and preferred stock) or (ii)
make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities issued by the Guarantor (including any
Other Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of any securities of any subsidiary of the Guarantor (including
Other Guarantees) if such guarantee ranks pari passu or junior in right of
payment to the Debentures (other than (a) dividends or distributions in shares
of, or options, warrants, rights to subscribe for or purchase shares of, common
stock of the Guarantor, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Capital Securities Guarantee, (d) as a
direct result of, and only to the extent required in order to avoid the issuance
of fractional shares of capital stock following, a reclassification of the
Guarantor's capital stock or the exchange or the conversion of one class or
series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans for its directors, officers or
employees or the Guarantor's dividend reinvestment plan) if at such time (i) an
Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (ii) there shall have occurred any event of which the Guarantor has
actual knowledge that (a) is, or with the giving of notice or the lapse of time,
or both, would be an Event of Default (as defined in the Indenture) and (b) in
respect of which the Guarantor shall not have taken reasonable steps to cure,
(iii) if such Debentures are held by the Property Trustee, the Guarantor shall
be in default with respect to its payment of any obligations under this Series A
Capital Securities Guarantee or (iv) the Guarantor shall have given notice of
its election of the exercise of its right to extend the interest payment period
pursuant to Section 16.01 of the Indenture and any such extension shall be
continuing.
SECTION 6.2 Ranking
-------
This Series A Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to Senior Indebtedness (as defined in the Indenture), to the
same extent and in the same manner that the Debentures are subordinated to
Senior Indebtedness pursuant to the Indenture, it being understood that the
terms of Article XV of the Indenture shall apply to the obligations of the
Guarantor under this Series A Capital Securities Guarantee as if (x) such
Article XV were set
16
<PAGE>
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XV, (ii) pari passu with the Debentures,
the Other Debentures and with the most senior preferred or preference stock now
or hereafter issued by the Guarantor and with any Other Guarantee (as defined
herein) and any Other Common Securities Guarantee and any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Series A Capital Securities Guarantee shall terminate and be of
no further force or effect (i) upon full payment of the Redemption Price (as
defined in the Declaration) of all Series A Capital Securities, (ii) upon
liquidation of the Trust, the full payment of the amounts payable in accordance
with the Declaration or the distribution of the Debentures to the Holders of all
of the Series A Capital Securities or (iii) upon exchange of all the Series A
Capital Securities for the Series B Capital Securities in the Exchange Offer and
the execution and delivery of the Series B Capital Securities Guarantee.
Notwithstanding the foregoing, this Series A Capital Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid under the Series A Capital
Securities or under this Series A Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses
-------------------------
The Guarantor covenants and agrees to pay to the Capital Securities
Guarantee Trustee from time to time, and the Capital Securities Guarantee
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Guarantor and the Capital Securities Guarantee Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Guarantor will pay or reimburse the
Capital Securities Guarantee Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Capital Securities
Guarantee Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from or be
incurred in connection with its negligence or bad faith. The Guarantor also
covenants to indemnify each of the Capital Securities Guarantee Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Capital Securities Guarantee Trustee)
incurred without negligence or bad faith on the part of the Capital Securities
Guarantee Trustee and arising out of or in connection with the acceptance or
administration of
17
<PAGE>
this guarantee, including the costs and expenses of defending itself against any
claim of liability in the premises.
The provisions of this Article shall survive the resignation or
removal of the Capital Securities Guarantee Trustee and the termination of this
Capital Securities Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Series A
Capital Securities 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 Series A Capital Securities 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, 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 might properly be paid.
SECTION 9.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or 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 9.2 shall survive the resignation or
removal of the Capital Securities Guarantee Trustee and the termination of this
Series A Capital Securities Guarantee.
18
<PAGE>
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Series A Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
SECTION 10.2 Amendments
----------
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Series A Capital Securities Guarantee may only be amended with
the prior approval of the Holders of a Majority in liquidation amount of the
Securities (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). The provisions of the Declaration
with respect to consents to amendments thereof (whether at a meeting or
otherwise) shall apply to the giving of such approval.
SECTION 10.3 Notices
-------
All notices provided for in this Series A Capital Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders and the Capital Securities Guarantee
Trustee):
First Commonwealth Capital Trust I
c/o First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: Chief Financial Officer
Telecopy: (724) 349-7220
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as the Capital Securities Guarantee Trustee may give notice of to
the Holders and the Issuer):
19
<PAGE>
The Chase Manhattan Bank
450 West 33/rd/ Street
15/th/ Floor
New York, New York 10001
Attention: Corporate Trust Administration Department
Telecopy:(212) 946-8154
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Series A Capital Securities and the Capital Securities Guarantee
Trustee):
First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: Chief Financial Officer
Telecopy: (724) 349-7220
(d) If given to any Holder of Series A Capital Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 10.4 Exchange Offer
--------------
In the event an Exchange Offer Registration Statement (as defined in
the Registration Rights Agreement) becomes effective and the Issuer issues any
Series B Capital Securities in the Exchange Offer, the Guarantor will enter into
a new capital securities guarantee agreement, in substantially the same form as
the Series B Capital Securities Guarantee attached hereto as Exhibit A, with
respect to the Series B Capital Securities.
SECTION 10.5 Benefit
-------
This Series A Capital Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Series A Capital Securities.
SECTION 10.6 Counterparts
------------
This Series A Capital Securities Guarantee may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
20
<PAGE>
SECTION 10.7 Governing Law
-------------
THIS SERIES A CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS SERIES A CAPITAL SECURITIES GUARANTEE is executed as of the day
and year first above written.
FIRST COMMONWEALTH FINANCIAL CORPORATION
By: /s/ John J. Dolan
-------------------------------------------
Name: John J. Dolan
Title: Senior Vice President & Chief Financial
Officer
THE CHASE MANHATTAN BANK, as Capital
Securities Guarantee Trustee
By: /s/ Joanne Adamis
-------------------------------------------
Name: J. Adamis
Title: Assistant Vice President
21
<PAGE>
EXHIBIT A
=============================================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
First Commonwealth Financial Corporation
Dated as of ___________ __, 1999
=============================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.................................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................................. 6
SECTION 2.2 Lists of Holders of Securities.................................................... 6
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee............................... 6
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee.......................... 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................................. 7
SECTION 2.6 Events of Default; Waiver......................................................... 7
SECTION 2.7 Event of Default; Notice.......................................................... 7
SECTION 2.8 Conflicting Interests............................................................. 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL
SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee..................... 8
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee............................ 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Series B Capital
Securities Guarantee.............................................................. 12
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility................................. 12
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee................................................................. 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee......................................................................... 14
SECTION 5.2 Waiver of Notice and Demand....................................................... 14
SECTION 5.3 Obligations Not Affected.......................................................... 14
SECTION 5.4 Enforcement of Guarantee; Rights of Holders....................................... 15
SECTION 5.5 Guarantee of Payment.............................................................. 16
SECTION 5.6 Subrogation....................................................................... 16
SECTION 5.7 Independent Obligations........................................................... 16
</TABLE>
<PAGE>
<TABLE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
<S> <C>
SECTION 6.1 Limitation of Transactions.......................................................... 16
SECTION 6.2 Ranking............................................................................. 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination......................................................................... 17
ARTICLE VIII
COMPENSATION AND EXPENSES OF CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses........................................................... 18
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation......................................................................... 18
SECTION 9.2 Indemnification..................................................................... 19
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns.............................................................. 19
SECTION 10.2 Amendments.......................................................................... 19
SECTION 10.3 Notices............................................................................. 20
SECTION 10.4 Benefit............................................................................. 21
SECTION 10.5 Counterparts........................................................................ 21
SECTION 10.6 Governing Law....................................................................... 21
</TABLE>
ii
<PAGE>
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series B Capital Securities
Guarantee"), dated as of __________ __, 1999, is executed and delivered by First
Commonwealth Financial Corporation, a Pennsylvania corporation (the
"Guarantor"), and The Chase Manhattan Bank , a New York banking corporation, as
trustee (the "Capital Securities Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series B Capital Securities
(as defined herein) of First Commonwealth Capital Trust I, a Delaware statutory
business trust (the "Issuer").
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of September 8, 1999, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof 35,000 capital securities, having an aggregate liquidation amount of
$35,000,000, such capital securities being designated the 9.50% Series B Capital
Securities (collectively the "Series B Capital Securities") in connection with
the consummation of an Exchange Offer (as defined in the Declaration);
WHEREAS, as incentive for the Holders to exchange the Series A Capital
Securities for the Series B Capital Securities in the Exchange Offer, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Series B Capital Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined below) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, the Guarantor executed and delivered on September 8, 1999 a
guarantee agreement (the "Common Securities Guarantee"), for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated, to the extent and in the
manner set forth in the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities and the Series B Capital Securities to receive
Guarantee Payments under the Series A Capital Securities Guarantee and this
Series B Capital Securities Guarantee, as the case may be;
NOW, THEREFORE, in consideration of the purchase by each Holder, which
exchange the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Series B Capital Securities Guarantee for
the benefit of the Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Series B Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series B Capital Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as of the date of execution of
this Series B Capital Securities Guarantee have the same meaning
when used in this Series B Capital Securities Guarantee unless
otherwise defined in this Series B Capital Securities Guarantee;
(c) a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout;
(d) all references to "the Series B Capital Securities Guarantee" or
"this Series B Capital Securities Guarantee" are to this Series B
Capital Securities Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Series B Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series
B Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Series B Capital Securities Guarantee, unless
otherwise defined in this Series B Capital Securities Guarantee
or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
------------
day on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
"Capital Securities Guarantee Trustee" means The Chase Manhattan Bank,
------------------------------------
a New York banking corporation, until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Series B Capital
2
<PAGE>
Securities Guarantee and thereafter means each such Successor Capital Securities
Guarantee Trustee.
"Common Securities" means the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Securities
----------------------
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 450 West 33/rd/ Street, 15/th/ Floor, New York, New York 10001.
"Covered Person" means any Holder or beneficial owner of Series B
--------------
Capital Securities.
"Debentures" means the series of subordinated debt securities of the
----------
Guarantor designated the 9.50% Series B Junior Subordinated Deferrable Interest
Debentures due 2029 held by the Property Trustee (as defined in the Declaration)
of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Series B Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Series B Capital Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Series B Capital Securities to the extent the Issuer has funds on hand
legally available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent the Issuer has funds on hand legally available
therefor at such time, with respect to any Series B Capital Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Series B
Capital Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Series B Capital Securities to the date of payment, to the extent the
Issuer has funds on hand legally available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer. If an Event of Default has occurred and is
continuing, no Guarantee Payments under the Common Securities Guarantee with
respect to the Common Securities or any guarantee payment under any Other Common
Securities Guarantees shall be made until the Holders shall be paid in full the
Guarantee Payments to which they are entitled under this Series B Capital
Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records
------
of the Issuer, of any Series B Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
3
<PAGE>
"Indemnified Person" means the Capital Securities Guarantee Trustee,
------------------
any Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of September 8, 1999, among
---------
the Guarantor (the "Debenture Issuer") and The Chase Manhattan Bank, as trustee,
pursuant to which the Debentures are to be issued to the Property Trustee of the
Issuer.
"Majority in liquidation amount of the Series B Capital Securities"
-----------------------------------------------------------------
means, except as provided by the Trust Indenture Act, a vote by Holder(s) 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 Series B Capital Securities.
"Officers' Certificate" means, with respect to any person, a
---------------------
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Financial Officer, the
Secretary or an Assistant Secretary, of the Guarantor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series B Capital Securities Guarantee (other than pursuant to Section
314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
----------------------------------
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
----------------
the Guarantor from time to time and sold to trusts, in each case similar to the
Issuer, to be established by the Guarantor (if any).
"Other Guarantees" means all guarantees to be issued by the Guarantor
----------------
with respect to capital securities (if any) similar to the Series B Capital
Securities issued by other trusts, in each case similar to the Issuer, to be
established by the Guarantor (if any).
4
<PAGE>
"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.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of September 8, 1999, by and among the Guarantor, the Issuer
and the Initial Purchaser named therein as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" means, when used with respect to the Capital
-------------------
Securities Guarantee Trustee, any officer of the Capital Securities Guarantee
Trustee with direct responsibility for the administration of this Capital
Securities Guarantee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Successor Capital Securities Guarantee Trustee" means a successor
----------------------------------------------
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" means the Common Securities and the Series A
----------------
Capital Securities and Series B Capital Securities, collectively.
5
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Series B Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series B Capital Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Series B Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 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 Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and addresses
of the Holders ("List of Holders") as of such date, (i) within one Business Day
after June 1 and December 1 of each year, and (ii) at any other time within 30
days of receipt by the Guarantor of a written request for a List of Holders as
of a date no more than 14 days before such List of Holders is given to the
Capital Securities 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 Capital Securities
Guarantee Trustee by the Guarantor. The Capital Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
---------------------------------------------------
Within 60 days after May 15 of each year, commencing May 15, 2000, the
Capital Securities Guarantee Trustee shall provide to the Holders such reports
as are required by Section 313(a) of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture Act. The
Capital Securities Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee
--------------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section 314 (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 provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
6
<PAGE>
Guarantor. Delivery of such reports, information and documents to the Capital
Securities Guarantee Trustee is for informational purposes only and the Capital
Securities Guarantee Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Capital Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Series A Capital Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Series B Capital
Securities may, by vote, on behalf of the Holders of all of the Series B Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Series B Capital Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Capital Securities Guarantee Trustee shall, within 60 days
after the occurrence of a default with respect to this Capital Securities
Guarantee, mail by first class postage prepaid, to all Holders, notices of all
defaults actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of default in the payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Capital Securities Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the holders of the
Series B Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice from the Guarantor or a Holder, or a
Responsible Officer of the Capital Securities Guarantee Trustee shall have
obtained actual knowledge, of such Event of Default.
7
<PAGE>
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in this
Series B Capital Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee
-------------------------------------------------------------
(a) This Series B Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders, and the
Capital Securities Guarantee Trustee shall not transfer this Series B Capital
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Capital Securities Guarantee
Trustee on acceptance by such Successor Capital Securities Guarantee Trustee of
its appointment to act as Successor Capital Securities Guarantee Trustee. The
right, title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Series B Capital
Securities Guarantee for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Series B Capital Securities Guarantee, and no implied
covenants shall be read into this Series B Capital Securities Guarantee against
the Capital Securities Guarantee Trustee. In case an 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 Capital Securities Guarantee
Trustee, the Capital Securities Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Series B Capital Securities Guarantee,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Series B Capital Securities Guarantee shall
be construed to relieve the Capital Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
8
<PAGE>
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Series B Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series B Capital
Securities Guarantee against the Capital Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Capital Securities Guarantee Trustee and
conforming to the requirements of this Series B Capital Securities
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Capital Securities Guarantee Trustee, the Capital Securities
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Series B Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Capital Securities Guarantee Trustee, unless it shall be proved that
the Capital Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Capital Securities 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 a Majority in
liquidation amount of the Series B Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Capital Securities Guarantee Trustee, or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under this Series B
Capital Securities Guarantee; and
(iv) no provision of this Series B Capital Securities Guarantee
shall require the Capital Securities 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 Capital Securities 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 Series B Capital
Securities Guarantee or indemnity, reasonably satisfactory to the Capital
Securities Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
9
<PAGE>
(e) This Series B Capital Securities Guarantee and all moneys
received by the Capital Securities Trustee hereunder in respect of the Guarantee
Payments will not be subject to any right, charge, security interest, loan or
claim of any kind in favor of or for the benefit of the Capital Securities
Guarantee Trustee or its agents or creditors.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
------------------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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
Series B Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Series B Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
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 Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Capital Securities Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such written advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Capital Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Series B Capital Securities Guarantee
from any court of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series B Capital Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Capital Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Capital
10
<PAGE>
Securities 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
Capital Securities Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Capital Securities
Guarantee Trustee, upon the occurrence of an Event of Default which has not
been cured or waived, of its obligation to exercise the rights and powers
vested in it by this Series B Capital Securities Guarantee and to use the
same degree of care and shall in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(vii) The Capital Securities 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 Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee
or its agents hereunder shall bind the Holders, and the signature of the
Capital Securities 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 Capital Securities
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Series B Capital Securities Guarantee, both of which
shall be conclusively evidenced by the Capital Securities Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series B Capital
Securities Guarantee the Capital Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Capital Securities
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Series B Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) The Capital Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Series
B Capital Securities Guarantee.
11
<PAGE>
(b) No provision of this Series B Capital Securities Guarantee
shall be deemed to impose any duty or obligation on the Capital Securities
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 Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Capital Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series B Capital
------------------------------------------------------------
Securities Guarantee
--------------------
The recitals contained in this Series B Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Capital Securities Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series B Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
-------------------------------------------------
(a) There shall at all times be a Capital Securities 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 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 Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Capital Securities Guarantee Trustee and Guarantor
shall in all respects comply with the
12
<PAGE>
provisions of Section 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
----------------------------------------------------------
Guarantee Trustee
-----------------
(a) Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee and
delivered to the Guarantor and to the Capital Securities Trustee being removed.
(c) The Capital Securities Guarantee Trustee shall hold office until
a Successor Capital Securities Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Securities Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Capital
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Capital Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Series B Capital Securities Guarantee
or removal or resignation of the Capital Securities Guarantee Trustee pursuant
to this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
13
<PAGE>
ARTICLE V
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 Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Series B
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Series B Capital Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Series B Capital Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Series B Capital Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Series B Capital 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 permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series B Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization,
14
<PAGE>
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series B
Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Holders
-------------------------------------------
(a) The Holders of a Majority in liquidation amount of the Series B
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Series B Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series B Capital Securities Guarantee provided, however,
-------- -------
that, subject to Section 3.1, the Capital Securities Guarantee Trustee shall
have the right to decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Capital
Securities Guarantee Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Capital Securities
Guarantee Trustee shall determine, in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers, that the action or proceedings so directed would
involve the Capital Securities Guarantee Trustee in personal liability.
(b) If the Capital Securities Guarantee Trustee fails to enforce such
Series B Capital Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Capital Securities
Guarantee Trustee's rights under this Series B Capital Securities Guarantee,
without first instituting a legal proceeding against the Issuer, the Capital
Securities Guarantee Trustee or any other person or entity. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor.
15
<PAGE>
SECTION 5.5 Guarantee of Payment
--------------------
This Series B Capital Securities 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 against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Series B Capital Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Series B Capital
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series B Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series B
Capital Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this Series
B Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
So long as any Series B Capital Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities issued by the Guarantor (including any
Other Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of any securities of any subsidiary of the Guarantor (including
Other Guarantees) if such guarantee ranks pari passu or junior in right of
payment to the Debentures (other than (a) dividends or distributions in shares
of, or options, warrants, rights to subscribe for or purchase shares of, common
stock of the Guarantor, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under this Series B Capital Securities Guarantee,
(d) as a direct result of, and only to the extent
16
<PAGE>
required in order to avoid the issuance of fractional shares of capital stock
following, a reclassification of the Guarantor's capital stock or the exchange
or the conversion of one class or series of the Guarantor's capital stock for
another class or series of the Guarantor's capital stock, (e) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's benefit plans
for its directors, officers or employees or the Guarantor's dividend
reinvestment plan) if at such time (i) an Event of Default (as defined in the
Indenture) shall have occurred and be continuing, (ii) there shall have occurred
any event of which the Guarantor has actual knowledge that (a) is, or with the
giving of notice or the lapse of time, or both, would be an Event of Default (as
defined in the Indenture) and (b) in respect of which the Guarantor shall not
have taken reasonable steps to cure, (iii) if such Debentures are held by the
Property Trustee, the Guarantor shall be in default with respect to its payment
of any obligations under this Series B Capital Securities Guarantee or (iv) the
Guarantor shall have given notice of its election of the exercise of its right
to extend the interest payment period pursuant to Section 16.01 of the Indenture
and any such extension shall be continuing.
SECTION 6.2 Ranking
-------
This Series B Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to Senior Indebtedness (as defined in the Indenture), to the
same extent and in the same manner that the Debentures are subordinated to
Senior Indebtedness pursuant to the Indenture, it being understood that the
terms of Article XV of the Indenture shall apply to the obligations of the
Guarantor under this Series B Capital Securities Guarantee as if (x) such
Article XV were set forth herein in full and (y) such obligations were
substituted for the term "Securities" appearing in such Article XV, (ii) pari
passu with the Debentures, the Other Debentures and with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and with
the Series A Capital Securities Agreement and any Other Guarantee (as defined
herein) and any Other Common Securities Guarantee and any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Series B Capital Securities Guarantee shall terminate and be of
no further force or effect (i) upon full payment of the Redemption Price (as
defined in the Declaration) of all Series B Capital Securities or (ii) upon
liquidation of the Issuer, the full payment of the amounts payable in accordance
with the Declaration or the distribution of the Debentures to the Holders of all
of the Series B Capital Securities. Notwithstanding the foregoing, this Series
B Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may
17
<PAGE>
be, if at any time any Holder must restore payment of any sums paid under the
Series B Capital Securities or under this Series B Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses
-------------------------
The Guarantor covenants and agrees to pay to the Capital Securities
Guarantee Trustee from time to time, and the Capital Securities Guarantee
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Guarantor and the Capital Securities Guarantee Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Guarantor will pay or reimburse the
Capital Securities Guarantee Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Capital Securities
Guarantee Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from or be
incurred in connection with its negligence or bad faith. The Guarantor also
covenants to indemnify each of the Capital Securities Guarantee Trustees (and
their officers, agents, directors and employees) for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Capital Securities Guarantee
Trustee) incurred without negligence or bad faith on the part of the Capital
Securities Guarantee Trustee and arising out of or in connection with the
acceptance or administration of this guarantee, including the costs and expenses
of defending itself against any claim of liability in the premises.
The provisions of this Article shall survive the resignation or
removal of the Capital Securities Guarantee Trustee and the termination of this
Capital Securities Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Series B
Capital Securities 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 Series B Capital Securities 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.
18
<PAGE>
(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, 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 might properly be paid.
SECTION 9.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or 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 9.2 shall survive the resignation or
removal of the Capital Securities Guarantee Trustee and the termination of this
Series B Capital Securities Guarantee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Series B Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
SECTION 10.2 Amendments
----------
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Series B Capital Securities Guarantee may only be amended with
the prior approval of the Holders of a Majority in liquidation amount of the
Series B Capital Securities (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). The provisions of
the Declaration with respect to consents to amendments thereof (whether at a
meeting or otherwise) shall apply to the giving of such approval.
19
<PAGE>
SECTION 10.3 Notices
-------
All notices provided for in this Series B Capital Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders and the Capital Securities Guarantee
Trustee):
First Commonwealth Capital Trust I
c/o First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: Chief Financial Officer
Telecopy: (724) 349-7220
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as the Capital Securities Guarantee Trustee may give notice of to
the Holders and the Issuer):
The Chase Manhattan Bank
450 West 33/rd/ Street
15/th/ Floor
New York, New York 10001
Attention: Corporate Trust Administration Department
Telecopy: (212) 946-8154
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Series B Capital Securities and the Capital Securities Guarantee
Trustee):
First Commonwealth Financial Corporation
22 North Sixth Street
Indiana, Pennsylvania 15701
Attention: Chief Financial Officer
Telecopy: (724) 349-7220
(d) If given to any Holder of Series B Capital Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address
20
<PAGE>
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 10.4 Benefit
-------
This Series B Capital Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Series B Capital Securities.
SECTION 10.5 Counterparts
------------
This Series B Capital Securities Guarantee may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 10.6 Governing Law
-------------
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
<PAGE>
THIS SERIES B CAPITAL SECURITIES GUARANTEE is executed as of the day
and year first above written.
FIRST COMMONWEALTH FINANCIAL CORPORATION, as Guarantor
By:_________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Capital
Securities Guarantee Trustee
By:_________________________________
Name:
Title:
22
<PAGE>
EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
Dated September 8, 1999
among
FIRST COMMONWEALTH FINANCIAL CORPORATION
as Guarantor
FIRST COMMONWEALTH CAPITAL TRUST I
as Issuer
and
KEEFE, BRUYETTE & WOODS, INC.
as Initial Purchaser
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
---------
entered into as of September 8, 1999 among FIRST COMMONWEALTH FINANCIAL
CORPORATION, a Pennsylvania corporation (the "Company"), FIRST COMMONWEALTH
-------
CAPITAL TRUST I, a business trust created under the laws of the state of
Delaware (the "Trust"), and KEEFE, BRUYETTE & WOODS, INC. (the "Initial
----- -------
Purchaser").
- ---------
This Agreement is made pursuant to the Purchase Agreement dated
September 2, 1999 (the "Purchase Agreement"), among the Company, as issuer of
------------------
9.50% junior subordinated deferrable interest debentures due 2029 (the "Junior
------
Subordinated Deferrable Interest Debentures"), the Trust and the Initial
- -------------------------------------------
Purchaser, which provides for among other things, (A) the sale by the Trust to
the Initial Purchaser on the date hereof of 25,000 of the Trust's 9.50% Capital
Securities, liquidation amount $1,000 per Capital Security, and (B) the future
sale by the Trust to Initial Purchaser of up to an additional 10,000 Capital
Securities (collectively, the "Capital Securities"), the proceeds of which will
------------------
be used by the Trust to purchase the Junior Subordinated Deferrable Interest
Debentures. The Capital Securities, together with the Junior Subordinated
Deferrable Interest Debentures and the Company's guarantee of the Capital
Securities (the "Capital Securities Guarantee") are collectively referred to as
----------------------------
the "Securities". In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company and the Trust have agreed to provide to the
Initial Purchaser and its direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
-----------
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
------
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(s)
-----------------
hereof.
"Business Day" shall mean any day other than a Saturday or Sunday, or
------------
a day on which banking institutions in New York, New York are authorized or
required by law or executive order to close.
"Company" shall have the meaning set forth in the preamble to this
-------
Agreement and also includes the Company's successors and permitted assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended and
----------- --------------------
Restated Declaration of Trust, to be dated as of September 8, 1999, by the
trustees named therein and the Company as sponsor.
2
<PAGE>
"Depositary" shall mean The Depository Trust Company, or any other
----------
depositary appointed by the Trust; provided, however, that such depositary must
-------- -------
have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
--------------------
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time.
"Exchange Offer" shall mean the offer by the Company and the Trust to
--------------
the Holders to exchange all of the Registrable Securities for a like principal
amount of Exchange Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
---------------------------
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
---------------
hereof.
"Exchange Securities" shall mean (i) with respect to the Junior
-------------------
Subordinated Deferrable Interest Debentures, the 9.50% Junior Subordinated
Deferrable Interest Debentures due September 1, 2029 (the "Exchange Debentures")
-------------------
containing terms substantially identical to the Junior Subordinated Deferrable
Interest Debentures (except that they will not contain terms with respect to the
transfer restrictions under the Securities Act and will not provide for any
increase in the interest rate thereon), (ii) with respect to the Capital
Securities, the Trust's 9.50% Capital Securities, liquidation amount $1,000 per
Capital Security (the "Exchange Capital Securities"), which will have terms
---------------------------
substantially identical to the Capital Securities (except they will not contain
terms with respect to transfer restrictions under the Securities Act and will
not provide for any increase in the Distribution rate thereon) and (iii) with
respect to the Capital Securities Guarantee, the Company's guarantee (the
"Exchange Capital Securities Guarantee") of the Exchange Capital Securities
- --------------------------------------
which will have terms substantially identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
------
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture or Declaration of Trust.
"Indenture" shall mean the Indenture relating to the Junior
---------
Subordinated Deferrable Interest Debentures and the Exchange Debentures to be
dated as of September 8, 1999 among the Company, as issuer, and The Chase
Manhattan Bank, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
3
<PAGE>
"Initial Purchaser" shall have the meaning set forth in the preamble
-----------------
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
----------
"Issue Date" shall mean September 8, 1999.
----------
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
------------------
hereof.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
---------------------------
Section 3(s) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
------
unincorporated organization, limited liability company or a government or agency
or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
------------------
to this Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
-------
"Registrable Securities" shall mean the Securities, provided, however,
---------------------- -------- -------
that the Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities, shall have been declared
effective under the Securities Act and such Securities shall have been disposed
of pursuant to such Registration Statement, (ii) such Securities shall have been
sold to the public or be eligible for sale to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the Securities
Act, (iii) such Securities shall have ceased to be outstanding or (iv) such
Securities have been exchanged for Exchange Securities upon consummation of the
Exchange Offer and are thereafter freely tradeable by the holder thereof (other
than an affiliate of the Company or Participating Broker-Dealers).
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
----
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and
4
<PAGE>
disbursements of counsel for any underwriters or Holders in connection with blue
sky qualification of any of the Exchange Securities or Registrable Securities)
and compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) any
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company, including
the expenses of any "cold comfort" letters required by or incident to such
performance and compliance, (vi) the fees and expenses of the Trustee, and any
exchange agent or custodian, (vii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by the Company in connection with any Registration
Statement.
"Registration Statement" shall mean any registration statement of the
----------------------
Company and the Trust which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
------------------
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities" shall have the meaning set forth in the preamble to this
----------
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
--------------
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
------------------------
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
-----------------------------
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company and the Trust pursuant to the provisions of Section
2(b) hereof which covers all of the Registrable Securities on an appropriate
form (which shall be Form S-3 if the Company is eligible to use such Form and
such Form is otherwise available for use) under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
5
<PAGE>
"TIA" shall have the meaning set forth in Section 3(k) hereof.
---
"Trustees" shall mean any and all trustees with respect to (i) the
--------
Capital Securities under the Declaration, (ii) the Junior Subordinated
Deferrable Interest Debentures under the Indenture and (iii) the Capital
Securities Guarantee.
2. Registration Under the Securities Act.
-------------------------------------
(a) Exchange Offer. To the extent not prohibited by any
--------------
applicable law or applicable interpretation of the staff of the SEC, the Company
and the Trust shall, for the benefit of the Holders, at the Company's cost, use
its best efforts to (i) cause to be filed with the SEC within 150 days after the
Issue Date an Exchange Offer Registration Statement on an appropriate form under
the Securities Act covering the Exchange Offer and (ii) cause such Exchange
Offer Registration Statement to be declared effective under the Securities Act
by the SEC not later than the date which is 180 days after the Issue Date. In
addition, in the event that the Company has filed a Shelf Registration Statement
in accordance with the provisions of Section 2(b) in lieu of conducting an
Exchange Offer in accordance with the foregoing sentence, the Company may, if
permitted in accordance with then applicable regulations and the then current
interpretations of the staff of the Commission, elect to conduct an Exchange
Offer in accordance with the terms set forth herein, other than with respect to
the specific timing requirements set forth in the foregoing sentence. In the
event the Company conducts such an Exchange Offer subsequent to the filing and
effectiveness of a Shelf Registration Statement, the Company's obligations to
maintain such a Shelf Registration shall terminate upon the consummation of the
Exchange Offer with respect of any Holder which could have received securities
that would be freely tradable without restriction under the Securities Act and
applicable blue sky or state securities laws through its participation in the
Exchange Offer. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for a like principal amount of
Exchange Debentures or a like liquidation amount of Exchange Capital Securities,
together with the Exchange Guarantee, as applicable (assuming that such Holder
is not an affiliate of the Company within the meaning of Rule 405 under the
Securities Act and is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer or in a public distribution (within the meaning of the Securities Act) for
the purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Trust
shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
6
<PAGE>
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
"Exchange Period");
---------------
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day of
the Exchange Period, by sending to the institution specified in the notice,
a telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Securities delivered for exchange,
and a statement that such Holder is withdrawing his election to have such
Securities exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to accrue
interest or accumulate distributions, as the case may be, but will not
retain any rights under this Agreement; and
(vi) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company and the Trust, as the case requires, shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the applicable Trustee
for cancellation all Securities or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the Indenture,
the Declaration or the Guarantee, as applicable, to promptly authenticate and
deliver to each Holder, new Exchange Securities equal in principal amount to the
principal amount of the Junior Subordinated Deferrable Interest Debentures or
equal in liquidation amount to the liquidation amount to the Capital Securities
(together with the guarantee thereof) as are surrendered by such Holder.
Distributions on each Exchange Capital Security and interest on
each Exchange Debenture issued pursuant to the Registered Exchange Offer will
accrue from the last date on which a Distribution or interest was paid on the
Capital Security or the Junior Subordinated Deferrable Interest Debenture
surrendered in exchange therefore or, if no Distribution or interest has been
paid on such Capital Security or Junior Subordinated Deferrable Interest
Debenture, from the Issue Date. To the extent not prohibited by any law or
applicable interpretations of the staff of the SEC, the Company and the Trust
shall use their best efforts to complete the Exchange Offer as provided above,
and shall comply with the applicable requirements of the Securities Act, the
Exchange Act and other applicable laws in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Securities in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including, in the case of any Holder of Capital Securities,
representations
7
<PAGE>
that (i) it is not an affiliate of the Trust or the Company, (ii) the Exchange
Securities to be received by it were acquired in the ordinary course of its
business and (iii) at the time of the Exchange Offer, it has no arrangement with
any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Capital Securities. Participating Broker-Dealers
and others who cannot make such representations will not acquire freely-tradable
Exchange Capital Securities. The Company and the Trust shall inform the Initial
Purchaser, after consultation with the Trustee, of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the Company and the Trust shall have no further obligation to
register the Registrable Securities.
(b) Shelf Registration. In the event that (i) the Company, the Trust
------------------
or the Majority Holders reasonably determine,after conferring with counsel
(which may be in-house counsel),that the Exchange Offer Registration provided in
Section 2(a)above is not available under applicable laws and regulations and
currently prevailing interpretations of the staff of the SEC or (ii) the
Exchange Offer Registration Statement is not declared effective within 180 days
of the Issue Date (any of the events specified in (i)-(ii) being a "Shelf
-----
Registration Event" and the date of occurrence thereof, the "Shelf
- ------------------
Registration Event Date"), the Company and the Trust shall promptly deliver
- -----------------------
to the Holders and the Property Trustee written notice thereof and shall, at
their cost, use their best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case may be, and
within 45 days after such Shelf Registration Event Date (provided that in no
event shall such date be earlier than 75 days after the Issue Date), a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities, and shall use its best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as practicable. No
Holder of Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration pursuant to this Agreement
unless and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to the
Company and the Trust in writing, within 15 days after receipt of a request
therefor, such information as the Company and the Trust may, after conferring
with counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company and
the Trust all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company and the Trust agree to use their best efforts to keep the
Shelf Registration Statement continuously effective for the Rule 144(k) Period
(subject to extension pursuant to the last paragraph of Section 3 hereof) or for
such shorter period which will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding (the "Effectiveness Period").
--------------------
The Company and the Trust shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration. The Company and the Trust
will, in the event a Shelf Registration Statement is declared effective, provide
to each Holder a reasonable number
8
<PAGE>
of copies of the Prospectus which is a part of the Shelf Registration Statement
and notify each such Holder when the Shelf Registration has become effective.
The Company and the Trust further agree, if necessary, to supplement or amend
the Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company and the Trust
agree to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
--------
connection with the registration pursuant to Section 2(a) or 2(b) hereof and
will reimburse the Initial Purchaser for the reasonable fees and disbursements
of Brown & Wood llp, counsel for the Initial Purchaser, incurred in connection
with the Exchange Offer, provided that, except with respect to such fees of
Brown & Wood llp, each Holder shall pay all expenses of its own counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
--------------------------------
Registration Statement pursuant to Section2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
-------- --------
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume. The Company and the Trust will be deemed not to have used their best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily take any action that
would result in any such Registration Statement not being declared effective or
in the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period unless
such action is required by applicable laws and regulations or currently
prevailing interpretations of the staff of the SEC.
(e) Liquidated Damages. In the event that:
------------------
(i) neither the Exchange Offer Registration Statement nor a Shelf
Registration Statement is filed with the SEC on or prior to the 150th day
after the Issue Date, then, commencing on the day after the applicable
required filing date, additional interest shall accrue on the principal
amount of the Junior Subordinated Deferrable Interest Debentures, and
additional Distributions shall accumulate on the liquidation amount of the
Capital Securities, each at a rate of 0.25% per annum; or
(ii) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or prior
to the 30th day after the applicable required filing date, then, commencing
on the 31st
9
<PAGE>
day after the applicable required filing date, additional interest shall
accrue on the principal amount of the Junior Subordinated Deferrable
Interest Debentures, and additional distributions shall accumulate on the
liquidation amount of the Capital Securities, each at a rate of 0.25% per
annum; or
(iii) (A) the Trust has not exchanged Exchange Capital Securities
for all Capital Securities or the Company has not exchanged Exchange
Guarantees or Exchange Junior Subordinated Deferrable Interest Debentures
for all Guarantees or Junior Subordinated Deferrable Interest Debentures
validly tendered, in accordance with the terms of the Exchange Offer on or
prior to the 45th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the
Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the
expiration of the Rule 144(k) Period (other than (a) after such time as all
Capital Securities have been disposed of thereunder or otherwise cease to
be Registrable Securities, (b) if the Company effects an Exchange Offer and
is no longer obligated to maintain the effectiveness of the Shelf
Registration Statement or (c) an Exchange Offer has been consummated), then
additional interest shall accrue on the principal amount of Junior
Subordinated Deferrable Interest Debentures, and additional distributions
shall accumulate on the liquidation amount of the Capital Securities, each
at a rate of 0.25% per annum commencing on (x) the 46th day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B) above;
provided, however, that neither the additional interest rate on the Junior
Subordinated Deferrable Interest Debentures, nor the additional distribution
rate on the liquidation amount of the Capital Securities, may exceed in the
aggregate 0.25% per annum; provided, further, however, that (1) upon the filing
of the Exchange Offer Registration Statement or a Shelf Registration Statement
(in the case of clause (i) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (ii) above), or (3) upon the exchange of Exchange Capital Securities,
Exchange Guarantees and Exchange Junior Subordinated Deferrable Interest
Debentures for all Capital Securities, Guarantees and Junior Subordinated
Deferrable Interest Debentures tendered (in the case of clause (iii)(A) above),
or upon the effectiveness of the Shelf Registration Statement which had ceased
to remain effective (in the case of clause (iii)(B) above), additional interest
on the Junior Subordinated Deferrable Interest Debentures, and additional
distributions on the liquidation amount of the Capital Securities as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue or accumulate, as the case may be, and the Junior Subordinated
Deferrable Interest Debentures shall thereafter resume accruing interest at the
rate of 9.50% per annum and the Capital Securities shall thereafter resume
accumulating distributions at the rate of 9.50% per annum.
Any amounts of additional interest and additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above ("Liquidated Damages") will be
------------------
payable in cash on the next succeeding March 1, or September 1 as the case may
be, to holders on the relevant record dates
10
<PAGE>
for the payment of interest and Distributions pursuant to the Indenture and the
Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies available to
--------------------
the Holders, the Company and the Trust acknowledge that any failure by the
Company or the Trust to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Holders for
which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Holder may obtain such relief as may be required to specifically
enforce the Company's and the Trust's obligations under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures. In connection with the obligations of
-----------------------
the Company and the Trust with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Company and the Trust shall use their best
efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate form
under the Securities Act, which form (i) shall be selected by the Company and
the Trust, (ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and (iii)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith; and use its best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2 hereof;
provided, however, that if (1) such filing is pursuant to Section 2(b), or (2)
- -------- -------
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities, before
filing any Registration Statement or Prospectus or any amendments or supplements
thereto, the Company and the Trust shall furnish to and afford the Holders of
the Registrable Securities (in the case of a filing pursuant to Section 2(b))
and each such Participating Broker-Dealer covered by an Exchange Offer
Registration Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of the Registration Statement and
Prospectus proposed to be filed. The Company and the Trust shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing underwriters,
if any, shall reasonably object ;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be; and cause each Prospectus to be supplemented, if so
determined by the Company or the Trust or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling
11
<PAGE>
Holders thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii)
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, use its best efforts to
register or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Securities shall reasonably request
in writing in advance of such date of effectiveness, and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided, however, that the
-------- -------
Company and the Trust shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2) Participating
Broker-Dealers from whom the Company or the Trust has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(s) hereof, are seeking to
sell Exchange Securities and are required to deliver Prospectuses, notify each
Holder of Registrable Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any, promptly and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Securities to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective
12
<PAGE>
date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
and the Trust contained in any purchase agreement, securities sales agreement or
other similar agreement, if any cease to be true and correct in all material
respects, and (v) of the happening of any event or the failure of any event to
occur or the discovery of any facts or otherwise, during the Effectiveness
Period which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) the Company and the Trust's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of such Shelf Registration
Statement, without charge, one conformed copy of each Registration Statement
relating to such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested and upon payment by the Holders of a reasonable copying fee determined
by the Company in the case of such exhibits);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends (except as may be required by law or currently
prevailing interpretations of the staff of the SEC) and in such denominations
(consistent with the provisions of the Indenture and the Declaration) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of any sale
of Registrable Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts to prepare
a supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for all Exchange Capital Securities and the
Capital Securities (and if the Trust has made a distribution of the Junior
Subordinated Deferrable Interest Debentures to the Holders of the Capital
Securities, the Junior Subordinated Deferrable Interest Debentures or the
Exchange Junior Subordinated Deferrable Interest Debentures) as the
13
<PAGE>
case may be, not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for deposit with
the Depositary;
(k) cause the Indenture, the Declaration, the Guarantee and the
Exchange Capital Securities Guarantee to be qualified under the Trust Indenture
Act of 1939 (the "TIA") in connection with the registration of the Exchange
---
Securities or Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts to
cause the relevant trustee to execute all documents as may be required to effect
such changes and all other forms and documents required to be filed with the SEC
to enable such documents to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, if requested by the Majority
Holders, enter into such agreements (including underwriting agreements) as are
customary in underwritten offerings and take all such other appropriate actions
as are reasonably requested in order to expedite or facilitate the registration
or the disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by Majority Holders:
(i) make such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business of the
Trust, the Company and its subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and the Trust and
updates thereof (which may be in the form of a reliance letter) in form and
substance reasonably satisfactory to the managing underwriters (if any) and the
Holders of a majority in principal amount of the Registrable Securities being
sold, addressed to each selling Holder and the underwriters (if any) covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort" letters
and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Company and the Trust (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company and the Trust or of any business
acquired by the Company and the Trust for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
which are substantially comparable to those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders); provided, however, that the
Company's obligations under this Section 3(l) shall be limited to one
underwritten offering;
14
<PAGE>
(m) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
----------
hours, all financial and other records, pertinent corporate documents and
properties of the Trust, the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
-------
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Trust, the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement provided, however, that the
-------- -------
foregoing inspection and information gathering shall be coordinated on behalf of
the Purchasers by the Company and the Trust. Records which the Company and the
Trust determine, in good faith, to be confidential and any records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) in the reasonable opinion of counsel to the selling
Holders and counsel to the Company, the disclosure of such Records is necessary
to avoid or correct a material misstatement or omission in such Registration
Statement, (ii) subject to the last sentence of this Section 3(m), the release
of such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) the information in such Records has been made generally
available to the public through no fault of the Inspectors or a selling Holder.
Each selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information obtained by
it as a result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of the
Trust or the Company unless and until such is made generally available to the
public through no fault of the Inspectors or a selling Holder. Each selling
Holder of such Registrable Securities and each such Participating Broker-Dealer
will be required to further agree in writing that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction or in
connection with any action, suit or proceeding, give notice to the Company and
allow the Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(n) comply in all material respects with all applicable rules and
regulations of the SEC so long as any provision of this Agreement shall be
applicable and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods;
15
<PAGE>
(o) upon consummation of an Exchange Offer, if requested by a
Trustee, obtain an opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Securities participating in the
Exchange Offer to the effect that (i) the Company and the Trust, as the case
requires, has duly authorized, executed and delivered the Exchange Securities
and (ii) each of the Exchange Securities constitutes a legal, valid and binding
obligation of the Company or the Trust, as the case requires, enforceable
against the Company or the Trust, as the case requires, in accordance with its
respective terms (in each case, with customary exceptions);
(p) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Securities by Holders to the Company or the Trust, as applicable (or
to such other Person as directed by the Company or the Trust, respectively), in
exchange for the Exchange Securities, the Company or the Trust, as applicable,
shall mark, or cause to be marked, on such Registrable Securities delivered by
such Holders that such Registrable Securities are being cancelled in exchange
for the Exchange Securities;
(q) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(r) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(s) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to an appropriate
representative of the Participating Broker-Dealers who constitute a Majority
Holder, if any, and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer (a "Participating Broker-Dealer") that
---------------------------
holds Registrable Securities acquired for its own account as a result of market-
making activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities
to be received by such broker-dealer in the Exchange Offer, including a
statement that any such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Securities, (ii)
furnish to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (each of the Company and the
Trust hereby consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by any
Person subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto), (iii) use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be
16
<PAGE>
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons must
comply with such requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Securities; provided, however, that
-------- -------
such period shall not be required to exceed 90 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the "Applicable
----------
Period"), and (iv) include in the transmittal letter or similar documentation to
- ------
be executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company and the Trust agree to deliver to an appropriate representative of the
Participating Broker-Dealers who constitute a Majority Holder, if any, if
requested by any such representative of such Participating Broker-Dealers, on
behalf of such Participating Broker-Dealers upon consummation of the Exchange
Offer (i) an opinion of counsel in form and substance reasonably satisfactory to
such representative of such Participating Broker-Dealers, covering the matters
customarily covered in opinions requested in connection with Exchange Offer
Registration Statements and such other matters as may be reasonably requested
(it being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in Section
5(g) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (iii) as well
as upon the effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company or the Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company or the Trust, as applicable, such information regarding such seller as
may be required by the staff of the SEC to be included in a Registration
Statement. The Company or the Trust may exclude from such registration the
Registrable Securities of any seller who fails to furnish such information
within a reasonable time after receiving such request. The Company shall have
no obligation to register under the Securities Act the Registrable Securities of
a seller who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company and the Trust that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(s)
17
<PAGE>
hereof, are seeking to sell Exchange Securities and are required to deliver
Prospectuses each Holder agrees that, upon receipt of any notice from the
Company or the Trust of the happening of any event of the kind described in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Trust that the
------
use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Trust, such Holder will deliver to the Company or the Trust (at
the Company's or the Trust's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as the case may
be, pursuant to a Registration Statement, the Company and the Trust shall use
their best efforts to file and have declared effective (if an amendment) as soon
as practicable an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company and the Trust shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution. In connection with any
--------------------------------
Registration Statement, the Company and the Trust shall, jointly and severally,
indemnify and hold harmless the Initial Purchaser, each Holder, each underwriter
who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees and
agents, as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), covering Registrable
Securities or Exchange Securities, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is effected
with the prior written consent of the Company; and
18
<PAGE>
(iii) from and against any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company or the Trust by such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Holder, Participating Broker-Dealer or any
underwriter, as the case may be, expressly for use in the Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) and (ii) the Company and the Trust shall not be liable to any such
Holder, Participating Broker-Dealer, any underwriter or controlling person, with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating Broker-Dealer,
any underwriter or controlling person results from the fact that such Holder,
any underwriter or Participating Broker-Dealer sold Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final Prospectus as then amended or supplemented if the
Company had previously furnished copies thereof to such Holder, underwriter or
Participating Broker-Dealer and the loss, liability, claim, damage or expense of
such Holder, underwriter, Participating Broker-Dealer or controlling person
results from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus. Any amounts
advanced by the Company or the Trust to an indemnified party pursuant to this
Section 4 as a result of such losses shall be returned to the Company or the
Trust if it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company or the Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Trust, any underwriter and the other selling
Holders and each of their respective directors, officers (including each officer
of the Company and the Trust who signed the Registration Statement), employees
and agents and each Person, if any, who controls the Company, the Trust, any
underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Trust by such selling Holder with
respect to such Holder expressly for use in the Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that, in the case of Shelf Registration Statement,
-------- -------
no such Holder shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
19
<PAGE>
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability which it may have
under this Section 4, except to the extent that it is materially prejudiced by
such failure. An indemnifying party may participate at its own expense in the
defense of any such action, or, if it so elects within a reasonable time after
receipt of such notice, assume the defense of any suit brought to enforce any
such claim; but if it so elects to assume the defense, such defense shall be
conducted by counsel chosen by it and approved by the indemnified party or
parties, which approval shall not be unreasonably withheld. In the event that an
indemnifying party elects to assume the defense of any such suit and retain such
counsel, the indemnified party or parties shall bear the fees and expenses of
any additional counsel thereafter retained by such indemnified party or parties;
provided, however, that the indemnified party or parties shall have the right to
employ counsel (in addition to local counsel) to represent the indemnified party
or parties who may be subject to liability arising out of any action in respect
of which indemnity may be sought against the indemnifying party if, in the
reasonable judgment of counsel for the indemnified party or parties, there may
be a conflict of interest such that multiple representation would violate the
Code of Professional Responsibility or like governing rules, in which event the
fees and expenses of appropriate separate counsel shall be borne by the
indemnifying party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from its own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory to the
indemnified parties of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, the Trust, and
the Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company, the Trust, and the Holders, as incurred; provided that
--------
no Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company, the
Trust, and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company and Trust, on the one hand, and the Holders, on
the other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect
20
<PAGE>
thereof, as well as any other relevant equitable considerations. The relative
fault of the Company and the Trust, on the one hand, and of the Holders, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Trust, on the one hand, or by or on behalf of the Holders, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Trust and the Holders of the Registrable Securities agree that it would not be
just and equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 4, each affiliate of a Holder, and each director, officer,
employee, agent and Person, if any, who controls a Holder or such affiliate
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Holder, and each
director of each of the Company or the Trust, each officer of each of the
Company or the Trust who signed the Registration Statement, and each Person, if
any, who controls each of the Company and the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as each of the Company or the Trust.
5. Participation in Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten offering. In
any such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Securities included in
such offering; provided, however, that such underwriters and managers must be of
-------- -------
national reputation and reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. For so long as the Company or the
----------------------
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, each of the
Company and the Trust, as the case may be, will use its best efforts to file the
reports required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder. Each of the Company and the Trust also agree that if it ceases to be
so required to file such reports, it will, upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent
21
<PAGE>
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, (ii) Rule 144A under the Securities Act,
as such rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company and the Trusts will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company or the Trust has not
--------------------------
entered into nor will the Company or the Trust on or after the date of this
Agreement enter into any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's or the Trust's other issued and
outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Trust has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided no amendment, modification or
--------
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof which materially adversely affects the rights of any Holder
of Registrable Securities shall be effective as against such Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, the Trust and Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the Trust and Initial Purchaser to the
extent that any such amendment, modification, supplement, waiver or consent is,
in their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to the Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by Initial Purchaser, the Company and the Trust.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to the
Initial Purchaser, the address set forth in the Purchase Agreement; and (ii) if
to the Company or the Trust, initially
22
<PAGE>
at the Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
-------- -------
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Initial Purchaser shall be a third
-----------------------
party beneficiary of the agreements made hereunder between the Company and the
Trust, on the one hand, and the Holders, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
-------------
IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
23
<PAGE>
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its Affiliates.
-----------------------------------------------------------
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company, the Trust or its affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
24
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FIRST COMMONWEALTH FINANCIAL CORPORATION
By: /s/ John J. Dolan
-----------------------------------
Name: John J. Dolan
Title: Senior Vice President & Chief
Financial Officer
FIRST COMMONWEALTH CAPITAL TRUST I
By: /s/ John J. Dolan
-----------------------------------
Name: John J. Dolan
Title: Administrative Trustee
Confirmed and accepted as of
the date first above written:
KEEFE, BRUYETTE & WOODS, INC.
By: /s/ Frank Cicero
-----------------------------
Name: Frank Cicero
Title: Vice President
25
<PAGE>
Exhibit 5.1
DRINKER BIDDLE & REATH LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103-6996
October 19, 1999
First Commonwealth Financial Corporation
First Commonwealth Capital Trust I
22 North Sixth Street
Indiana, PA 15701
Re: Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
As special counsel to First Commonwealth Financial Corporation, a
Pennsylvania corporation (the "Company") and sponsor of First Commonwealth
Capital Trust I, a Delaware statutory business trust (the "Trust"), we have
assisted in the preparation and filing of a registration statement on Form S-4
(the "Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to (i) the proposed issuance by the Trust of $35,000,000 aggregate
liquidation amount of the Trust's 9.50% Series B Capital Securities (the "New
Capital Securities") in exchange for $35,000,000 aggregate liquidation amount of
the Trust's 9.50% Series A Capital Securities (the "Old Capital Securities"),
(ii) the proposed issuance by the Company to the Trust of Series B 9.50% junior
subordinated deferrable interest debentures ("New Debentures") in an aggregate
principal amount corresponding to the aggregate liquidation amount of the New
Capital Securities in exchange for like aggregate principal amount of the
Company's Series A 9.50% junior subordinated deferrable interest debentures
("Old Debentures"); and (iii) the Series B Capital Securities Guarantee (the
"New Guarantee") to be issued by the Company in exchange for the Series A
Capital Securities Guarantee ("Old Guarantee"). The New Debentures will be
issued pursuant to an Indenture ("Indenture") dated as of September 8, 1999, by
and among the Company and The Chase Manhattan Bank, as Debenture Trustee.
In this connection, we have examined the originals or copies, certified or
otherwise identified to our satisfaction, of the Certificate of Incorporation
and By-laws of the Company, as amended, minutes and resolutions of the Company's
Board of Directors, the Indenture, the New Guarantee, the Registration Rights
Agreement ("Registration Rights Agreement") by and among the Company, the Trust
and the Initial Purchaser of the Old Capital Securities, a specimen of the New
<PAGE>
Debentures and such other documents and corporate records relating to the
Company and the Trust and the issuance of the New Debentures and New Guarantee
as we have deemed appropriate. In all cases, we have assumed the genuiness of
signatures, the authenticity of documents submitted to us as originals, the
conformity to authentic original documents of documents submitted to us as
copies and the accuracy and completeness of all corporate records and other
information made available to us by the Company and the Trust. We have further
assumed that the documents set forth in the first sentence of this paragraph
have been duly authorized, executed and delivered by, and are the legal, valid
and binding obligations of, all parties thereto other than the Company.
In all examinations of documents, instruments and other papers, we have
assumed the genuineness of all signatures on originals and all copies submitted
to us as conformed, photostatic or other copies. As to matters of fact that
have not been independently established, we have relied upon representations of
officers of the Company and trustees of the Trust.
On the basis of the foregoing, it is our opinion that:
1. The New Debentures have been duly authorized for issuance by the
Company and, upon execution of the New Debentures, authentication of the New
Debentures by the Debenture Trustee and issuance and delivery of the New
Debentures in the manner provided in the Indenture and the Registration
Statement (including the exchange of the Old Debentures for the New Debentures
as set forth in the Registration Statement), the New Debentures will be legally
issued and constitute valid and binding obligations of the Company, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws affecting the rights of creditors generally and
subject to general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law (the "Specified Exceptions").
2. The New Guarantee has been duly authorized by all requisite
corporate action by the Company and, when executed and delivered by the Company
to The Chase Manhattan Bank, as Guarantee Trustee, as contemplated by the
Registration Rights Agreement, the New Guarantee will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the Specified Exceptions.
The opinions above are limited to (i) the laws of the Commonwealth of
Pennsylvania and the federal laws of the United States of America; and (ii) with
respect to the validity
<PAGE>
and binding nature of the New Debentures and the New Guarantee in paragraphs 1
and 2, respectively, the law of the State of New York. With respect to all
matters of New York law, we have relied with your approval exclusively upon the
opinion of Akin, Gump, Strauss, Hauer & Feld L.L.P. dated September 8, 1999, as
updated by its letter dated October 19, 1999 (the "AG Opinion"). Our opinions
in paragraphs 1 and 2 with respect to the validity and binding nature of the New
Debentures and New Guarantee are subject to the same assumptions,
qualifications, and limitations with respect to the matters contained therein as
are contained in the AG opinion.
We hereby consent to the reference to our firm under the caption
"Legal Matters" in the Prospectus included in the Registration Statement and to
the filing of this opinion as an exhibit to the Registration Statement. This
does not constitute a consent under Section 7 of the Securities Act as we have
not certified any part of the Registration Statement and do not otherwise come
within the categories of persons whose consent is required under Section 7 or
the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
<PAGE>
Exhibit 5.2
[Letterhead of Akin, Gump, Strauss, Hauer & Feld L.L.P.]
October 19, 1999
Drinker Biddle & Reath LLP
One Logan Square
18th & Cherry Streets
Philadelphia, Pennsylvania 19103-6996
Ladies and Gentlemen:
We refer to our opinion (the "Opinion") dated September 8, 1999 addressed
to Keefe, Bruyette & Woods with respect to the execution and delivery of certain
documents specified therein by First Commonwealth Financial Corporation (the
"Company") and First Commonwealth Capital Trust I. This is to confirm to you
that the Opinion remains true and correct as of the date hereof, subject to the
assumptions, exceptions, limitations and qualifications stated therein. We
understand that you are relying on this letter and the Opinion for purposes of
your opinion dated October 19, 1999 addressed to the Company in connection with
the registration statement filed for purposes of registering the Company's
Series B capital securities guarantee and Series B debentures.
This confirmation of the Opinion is as of the date hereof, and we undertake
no, and hereby disclaim any, obligation to advise you of any change in the
Opinion. This letter is solely for your benefit and may not be relied on in any
manner or for any purposes by any other party.
We hereby consent to the reference to the firm under the caption "Legal
Matters" in the prospectus included in the registration statement referred to
above and to the filing of this letter and the Opinion as an exhibit to such
registration statement. This does not constitute a consent under Section 7 of
the Securities Act as we have not certified any part of such registration
statement and do not otherwise come within the categories of persons whose
consent is required under Section 7 or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/s/ Akin, Gump, Strauss, Hauer & Feld L.L.P.
<PAGE>
September 8, 1999
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, NY 10048
Ladies and Gentlemen:
We have acted as special New York counsel to First Commonwealth Financial
Corporation, a Pennsylvania corporation (the "Company") and First Commonwealth
Capital Trust I, a Delaware business trust (the "Trust"), in connection with the
execution and delivery of:
1. A Debenture Subscription Agreement dated as of September 8, 1999
between the Company and the Trust (the "Subscription Agreement")
relating to the 9.50% Series A Junior Subordinated Deferrable Interest
Debentures due September 1, 2029 issued by the Company (the
"Debentures") and the 9.50% Series B Junior Subordinated Deferrable
Interest Debentures due September 1, 2029 contemplated to be issued by
the Company (the "Exchange Debentures");
2. an Indenture dated as of September 8, 1999 between the Company and The
Chase Manhattan Bank as trustee (the "Indenture");
3. a Common Securities Guarantee Agreement dated as of September 8, 1999
made by the Company (the "Common Securities Guarantee"); and
4. a Series A Capital Securities Guarantee Agreement dated as of September
8, 1999 made by the Company and The Chase Manhattan Bank as trustee
(the "Capital Securities Guarantee").
<PAGE>
The Subscription Agreement, the Indenture, the Common Securities Guarantee
and the Capital Securities Guarantee are referred to herein as the "Opinion
Documents." Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Opinion Documents.
In connection with the opinions expressed below, we have examined and
relied upon fully executed copies of each of the Opinion Documents. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as conformed, certified or
photostatic copies thereof, and the authenticity of the originals of such
conformed, certified or photostatic copies. We have further assumed that (i)
the Opinion Documents, the Debentures, the Exchange Debentures and a guarantee
(the "Exchange Capital Securities Guarantee") to be issued pursuant to Section
10.4 of the Capital Securities Guarantee have been duly authorized and the
Opinion Documents have been executed and delivered by each Person which is a
party thereto, (ii) each Person which is a party to the Opinion Documents, or
will be a party to the Debentures, the Exchange Debentures and the Exchange
Capital Securities Guarantee, is duly organized, validly existing and in good
standing in all applicable jurisdictions and has the requisite power and
authority to enter into the Opinion Documents to which it is a party and into
the Debentures, the Exchange Debentures and the Exchange Capital Securities
Guarantee and to consummate the transactions contemplated thereby, (iii) the
Opinion Documents do not, and the Debentures, the Exchange Debentures and the
Exchange Capital Securities Guarantee will not, violate any law, rule or
regulation of any jurisdiction, other than, with respect to the Company and the
Trust, the State of New York, to which any Person which is a party thereto is
subject and no consent, approval or authorization by any Person or by any
governmental authority is required in connection therewith, and (iii) the
Opinion Documents are valid and binding obligations of each Person which is a
party thereto other than the Company and the Trust, enforceable against such
Person in accordance with their respective terms.
Based upon the foregoing and subject to the limitations, qualifications and
exceptions set forth below, we are of the opinion that:
1. Each of the Opinion Documents constitutes a valid and binding
obligation of the Company or the Trust, as the case may be, enforceable
against the Company or the Trust, as the case may be, in accordance
with its terms.
2. The Debentures, when executed, authenticated and delivered in the
manner provided for in the Indenture and delivered against payment
therefor as contemplated by the Subscription Agreement 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. The Exchange Debentures, if any, would, if
<PAGE>
executed, authenticated and delivered in the manner provided for in the
Indenture and delivered as provided in the Registration Rights
Agreement dated as of September 8, 1999 by and among the Company, the
Trust and Keefe, Bruyette & Woods, Inc., 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.
3. The Exchange Capital Securities Guarantee would, if issued on the date
hereof, constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
The foregoing opinions are subject to the following additional
assumptions, exceptions, limitations and qualifications:
A. The opinions expressed herein are limited to questions arising
under the laws of the State of New York (other than securities or blue sky laws,
as to which we express no opinion). In particular, but without limitation, we
express no opinion as to the laws of the States of Delaware or Pennsylvania or
the federal laws of the United States.
B. The validity, binding nature and enforceability of the Opinion
Documents, the Debentures, the Exchange Debentures and the Exchange Capital
Securities Guarantee may be (i) limited by applicable bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally; (ii) subject to
general principles of equity, including commercial reasonableness, good faith
and fair dealing (regardless of whether such enforceability is considered in a
proceeding at law or equity); and (iii) limited by, or subject to, the powers of
courts to award damages in lieu of equitable remedies. In addition, any right
to indemnification contained in the Opinion Documents, the Debentures, the
Exchange Debentures and the Exchange Capital Securities Guarantee may be limited
by the law or public policy of the State of New York and the United States.
C. We express no opinion as to the validity, legally binding effect
or enforceability of any provision of any Opinion Document, the Debentures, the
Exchange Debentures or the Exchange Capital Securities Guarantee purporting to
(i) provide for specific performance or injunctive or other forms of equitable
relief, (ii) impose penalties, forfeitures, late payment charges or an increase
in interest rate upon delinquency in payment or the occurrence of a default, and
(iii) provide for the payment of attorneys' fees in excess of amounts that a
court determines to be reasonable.
<PAGE>
D. With respect to our opinion set forth in paragraph 1 above, we
express no opinion in respect of the Common Securities Guarantee to the extent
that the Guarantor thereunder is also the Holder.
E. We express no opinion as to the enforceability of Sections 12.01
and 13.11 of the Indenture and the corresponding provisions of the other Opinion
Documents, the Debentures, the Exchange Debentures and the Exchange Capital
Securities Guarantee.
This opinion is as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any matter set
forth herein. The opinions expressed herein are solely for your benefit and may
not be relied on in any manner or for any purpose by any other Person except
Drinker Biddle and Reath LLP for the purpose of rendering an opinion regarding
the Opinion Documents, the Debentures, the Exchange Debentures and the Exchange
Capital Securities Guarantee.
Very truly yours,
/s/ Akin, Gump, Strauss, Hauer & Feld LLP
<PAGE>
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
October 19, 1999
First Commonwealth Financial Corporation
Old Courthouse Square
22 North Sixth Street
Indiana, Pennsylvania 15701
Re: First Commonwealth Capital Trust I
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Commonwealth
Financial Corporation, a Pennsylvania corporation ("First Commonwealth"), and
First Commonwealth Capital Trust I, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion is
being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of August 16, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware on August 16, 1999;
(b) The Declaration of Trust of the Trust, dated as of August 16, 1999,
among First Commonwealth, as sponsor, and the trustees of the Trust named
therein;
(c) The Amended and Restated Declaration of Trust of the Trust, dated
as of September 8, 1999 (including Annex I and Exhibits A-1 and A-2 thereto)
(the "Declaration"), among First Commonwealth, 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; and
<PAGE>
First Commonwealth Financial Corporation
October 19, 1999
Page 2
(d) The registration statement on form S-4 (the "Registration
Statement"), filed by the Trust on October 19, 1999, with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended,
relating to the proposed issuance by the Trust of $35,000,000 aggregate
liquidation amount of the Trust's 9.50% Series B Capital Securities representing
undivided beneficial interests in assets of the Trust (each, an "Exchange
Capital Security" and collectively, the "Exchange Capital Securities") in
exchange for $35,000,000 aggregate liquidation amount of the Trust's 9.50%
Series A Capital Securities.
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 or referred to in paragraphs (a) through (d) above.
In particular, we have not reviewed any document (other than the documents
listed or referred to in paragraphs (a) through (d) 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
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation, and
termination of the Trust, and that the Declaration and the Certificate are in
full force and effect, have not been amended and no amendment of the Declaration
or the Certificate is pending or has been proposed, (ii) that each of the
parties to the documents examined by us has been duly created, formed, or
organized, as the case may be, and is validly existing in good standing under
the laws of the jurisdiction governing its creation, formation or organization,
(iii) the legal capacity of each natural person who is a party 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 of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom an Exchange Capital Security is to be issued
by the Trust (the "Exchange Capital Security Holders") of a Capital Securities
Certificate (substantially in the form attached to the Declaration as Exhibit A-
1) for the Exchange Capital Security and the payment for the Exchange Capital
Security acquired by it in accordance with the Declaration and as described in
the Registration Statement, and (vii) that the Exchange Capital Securities are
issued and sold to the Exchange Capital Security Holders in accordance with the
Declaration and as described in the Registration
<PAGE>
First Commonwealth Financial Corporation
October 19, 1999
Page 3
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, when duly executed,
authenticated and delivered in the manner provided in the Declaration and issued
in the Exchange Offer to the Exchange Security Holders as contemplated by the
Registration Statement, the Exchange Capital Securities will be duly authorized
and validly issued and, subject to the qualifications set forth herein, fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust, and the Exchange Capital Security Holders 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. We note that the Exchange Capital Security Holders
may be obligated, pursuant to the Declaration, to (a) provide indemnity and/or
security in connection with and pay a sum sufficient to cover taxes or
governmental charges (or other expenses) arising from transfers or exchanges of
Exchange Capital Securities certificates and the issuance of replacement
Exchange Capital Securities certificates, and (b) provide security and/or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Declaration. Under the Business
Trust Act, 12 Del. C. (S) 3801, et seq., and the Declaration, the issuance of
------- -- ---
the Exchange Capital Securities is not subject to preemptive or other similar
rights.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Exchange Offer. In addition, we hereby consent
to the use of our name under the heading "Legal Matters" in the Registration
Statement. 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 SEC
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.
<PAGE>
Exhibit 8
October 18, 1999
First Commonwealth Financial Corporation
Old Courthouse Square
22 North Sixth Street
Indiana, PA 15701
Ladies and Gentlemen:
As counsel to First Commonwealth Financial Corporation, a Pennsylvania
corporation (the "Corporation"), and First Commonwealth Capital Trust I, a
Delaware business trust (the "Trust"), we have assisted in the preparation and
filing of the Corporation's and the Trust's Registration Statement on Form S-4
(the "Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), relating to
$35,000,000 principal amount of the Trust's 9.50% Series B Capital Securities.
In our opinion, the statements in the Prospectus contained in the Registration
Statement (the "Prospectus") under the caption "Certain Federal Income Tax
Considerations," to the extent they constitute matters of law or legal
conclusions, are accurate in all material respects.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and we consent to the reference to our name under the
caption "Certain Federal Income Tax Considerations" in the Prospectus. In so
consenting, we do not concede that we come within the category of persons whose
consent is required under section 7 of the Act.
Very truly yours,
/s/ DRINKER BIDDLE & REATH LLP
DRINKER BIDDLE & REATH LLP
<PAGE>
Exhibit 12
Computation of the Consolidated Ratio of Earnings to Fixed Charges
The following is First Commonwealth's calculation of consolidated ratios of
earnings to fixed charges for each of the periods indicated. For purposes of
computing the ratios of earnings to fixed charges, earnings represent net income
before extraordinary items and cumulative effect of changes in accounting
principles plus applicable income taxes and fixed charges. Fixed charges include
gross interest expense and the portion deemed representative of the interest
factor of rent expense.
<TABLE>
<CAPTION>
For the Years Ended December 31,
June 30, For the Six Months Ended
------------------------------------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income before
extraordinary items and
cumulative effect of changes
in accounting principles 37,342 34,564 37,193 39,539 33,998 20,476 26,831
Applicable Income Taxes 17,761 15,728 16,164 17,338 12,229 7,764 10,472
Fixed Charges 86,525 103,421 109,551 124,835 148,679 73,426 73,916
------- ------- ------- ------- ------- ------- -------
Earnings before fixed charges 141,628 153,713 162,908 181,712 194,906 101,666 111,219
Fixed Charges:
Interest Expense 86,133 103,019 109,189 124,427 148,282 73,224 73,728
Plus 1/3 building rent expense 392 402 362 408 397 202 188
------- ------- ------- ------- ------- ------- -------
Total Fixed Charges 86,525 103,421 109,551 124,835 148,679 73,426 73,916
Interest on Deposits 78,147 94,156 101,186 112,600 113,960 57,180 51,440
Earnings/Fixed Charges 1.64 1.49 1.49 1.46 1.31 1.38 1.50
</TABLE>
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
First Commonwealth Financial Corporation on Form S-4 of our report dated
February 17, 1999, appearing in and incorporated by reference in the Annual
Report on Form 10-K of First Commonwealth Financial Corporation for the year
ended December 31, 1998 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
October 19, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-4 related to First Commonwealth Capital Trust I capital securities and
the related prospectus, dated October 19, 1999, guaranteed by First Commonwealth
Financial Corporation, of our report dated February 17, 1999, with respect to
the consolidated balance sheets of Southwest National Corporation and subsidiary
as of December 31, 1998 and 1997, and the related consolidated statements of
income, changes in shareholders' equity and cash flows for each of the years in
the three-year period ended December 31, 1998, which is included in the Annual
Report on Form 10-K filed by First Commonwealth Financial Corporation for the
year ended December 31, 1998, and to the reference to our Firm under the heading
"Experts" in the Registration Statement and the related Prospectus.
/s/ KPMG LLP
Pittsburgh, Pennsylvania
October 19, 1999
<PAGE>
EXHIBIT 23.3
Consent of Independent Certified Public Accountants
---------------------------------------------------
We have issued our report dated January 17, 1997 before giving retroactive
effect to the pooling of interest as described in Note 2 to the consolidated
financial statements of First Commonwealth Financial Corporation and its
subsidiaries for the year ended December 31, 1998 included in the 1998 Annual
Report of First Commonwealth Financial Corporation and subsidiaries on Form 10-K
for the year ended December 31, 1998 which is incorporated by reference in this
Registration Statement. We consent to the inclusion in the Registration
Statement of the aforementioned report and to the use of our name as it appears
under the caption "Experts."
/s/ Grant Thornton LLP
- -----------------------------------
Philadelphia, Pennsylvania
October 18, 1999
<PAGE>
EXHIBIT 25.1
- --------------------------------------------------------------------------------
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 13-4994650
(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)
____________________________________________
FIRST COMMONWEALTH FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
Pennsylvania 25-1428528
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Old Courthouse Square
22 North Sixth Street
Indiana, Pennsylvania 15701
(Address of principal executive offices) (Zip Code)
___________________________
Series B 9.50% junior subordinated deferrable interest debentures
(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.
<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 20/th/ day of September,
1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
------------------
/s/ 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 June 30, 1999, 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............................................... $ 13,119
Interest-bearing balances....................................... 6,761
Securities:.......................................................
Held to maturity securities....................................... 892
Available for sale securities..................................... 42,965
Federal funds sold and securities purchased under
agreements to resell............................................ 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ $ 130,602
Less: Allowance for loan and lease losses....................... 2,551
Less: Allocated transfer risk reserve........................... 0
--------------
Loans and leases, net of unearned income,
allowance, and reserve.......................................... 128,051
Trading Assets.................................................... 41,426
Premises and fixed assets (including capitalized leases).......... 3,190
Other real estate owned........................................... 28
Investments in unconsolidated subsidiaries and associated
companies....................................................... 182
Customers' liability to this bank on acceptances outstanding...... 901
Intangible assets................................................. 2,010
Other assets...................................................... 14,567
--------------
TOTAL ASSETS...................................................... $ 286,369
==============
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices............................................. $ 101,979
Noninterest-bearing............................................. $ 42,241
Interest-bearing................................................ 59,738
--------------
In foreign offices, Edge and Agreement subsidiaries and IBF's... 76,395
Noninterest-bearing............................................. $ 4,645
Interest-bearing................................................ 71,750
Federal funds purchased and securities sold under agreements to
repurchase...................................................... 36,604
Demand notes issued to the U.S. Treasury.......................... 1,001
Trading liabilities............................................... 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................... 3,606
With a remaining maturity of more than one year
through three years............................................. 14
With a remaining maturity of more than three years.............. 91
Bank's liability on acceptances executed and outstanding.......... 901
Subordinated notes and debentures................................. 5,427
Other liabilities................................................. 11,247
TOTAL LIABILITIES................................................. 267,552
--------------
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............................ 7,317
Net unrealized holding gains (losses)
on available-for-sale securities.................................. (743)
Accumulated net gains (losses) on cash flow hedges................ 0
Cumulative foreign currency translation adjustments............... 16
TOTAL EQUITY CAPITAL.............................................. 18,817
--------------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $ 286,369
==============
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-5-
<PAGE>
EXHIBIT 25.2
_____________________________________________________________________
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 13-4994650
(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)
____________________________________________
FIRST COMMONWEALTH CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware 25-6665847
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Old Courthouse Square
22 North Sixth Street
Indiana, Pennsylvania 15701
(Address of principal executive offices) (Zip Code)
________________________________________
Series B 9.50% capital 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.
<PAGE>
-3-
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 20/th/ day of September,
1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
--------------------------
Joanne Adamis
Assistant Vice President
<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 June 30, 1999, 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............................................... $ 13,119
Interest-bearing balances....................................... 6,761
Securities:.......................................................
Held to maturity securities....................................... 892
Available for sale securities..................................... 42,965
Federal funds sold and securities purchased under
agreements to resell............................................ 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ $ 130,602
Less: Allowance for loan and lease losses....................... 2,551
Less: Allocated transfer risk reserve........................... 0
--------------
Loans and leases, net of unearned income,
allowance, and reserve.......................................... 128,051
Trading Assets.................................................... 41,426
Premises and fixed assets (including capitalized leases).......... 3,190
Other real estate owned........................................... 28
Investments in unconsolidated subsidiaries and associated
companies....................................................... 182
Customers' liability to this bank on acceptances outstanding...... 901
Intangible assets................................................. 2,010
Other assets...................................................... 14,567
--------------
TOTAL ASSETS...................................................... $ 286,369
==============
</TABLE>
-4-
<PAGE>
a<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices............................................. $ 101,979
Noninterest-bearing............................................. $ 42,241
Interest-bearing................................................ 59,738
--------------
In foreign offices, Edge and Agreement
subsidiaries and IBF's.......................................... 76,395
Noninterest-bearing ............................................ $ 4,645
Interest-bearing................................................ 71,750
Federal funds purchased and securities sold under
agreements to repurchase.......................................... 36,604
Demand notes issued to the U.S. Treasury.......................... 1,001
Trading liabilities............................................... 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................... 3,606
With a remaining maturity of more than one year .
through three years........................................ 14
With a remaining maturity of more than three years......... 91
Bank's liability on acceptances executed and outstanding.......... 901
Subordinated notes and debentures................................. 5,427
Other liabilities................................................. 11,247
TOTAL LIABILITIES................................................. 267,552
--------------
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............................ 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................. (743)
Accumulated net gains (losses) on cash flow hedges................ 0
Cumulative foreign currency translation adjustments............... 16
TOTAL EQUITY CAPITAL.............................................. 18,817
--------------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $ 286,369
==============
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-5-
<PAGE>
EXHIBIT 25.3
__________________________________________________________________
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 13-4994650
(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)
__________________________________________
FIRST COMMONWEALTH FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
Pennsylvania 25-1428528
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Old Courthouse Square
22 North Sixth Street
Indiana, Pennsylvania 15701
(Address of principal executive offices) (Zip Code)
________________________________________________
Series B Guarantee of Series B 9.50% capital securities of
First Commonwealth Capital Trust I
(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.
<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 20/th/ day of September,
1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
______________________
/s/ 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 June 30, 1999, 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............................................... $ 13,119
Interest-bearing balances....................................... 6,761
Securities:.......................................................
Held to maturity securities....................................... 892
Available for sale securities..................................... 42,965
Federal funds sold and securities purchased under
agreements to resell............................................ 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ $ 130,602
Less: Allowance for loan and lease losses....................... 2,551
Less: Allocated transfer risk reserve........................... 0
--------------
Loans and leases, net of unearned income,
allowance, and reserve.......................................... 128,051
Trading Assets.................................................... 41,426
Premises and fixed assets (including capitalized leases).......... 3,190
Other real estate owned........................................... 28
Investments in unconsolidated subsidiaries and associated
companies...................................................... 182
Customers' liability to this bank on acceptances outstanding...... 901
Intangible assets................................................. 2,010
Other assets...................................................... 14,567
--------------
TOTAL ASSETS...................................................... $ 286,369
==============
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices............................................. $ 101,979
Noninterest-bearing............................................. $ 42,241
Interest-bearing................................................ 59,738
--------------
In foreign offices, Edge and Agreement subsidiaries and IBF's... 76,395
Noninterest-bearing............................................. $ 4,645
Interest-bearing................................................ 71,750
Federal funds purchased and securities sold under
agreements to repurchase......................................... 36,604
Demand notes issued to the U.S. Treasury.......................... 1,001
Trading liabilities............................................... 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................... 3,606
With a remaining maturity of more than one year
through three years........................................... 14
With a remaining maturity of more than three years.............. 91
Bank's liability on acceptances executed and outstanding.......... 901
Subordinated notes and debentures................................. 5,427
Other liabilities................................................. 11,247
TOTAL LIABILITIES................................................. 267,552
--------------
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............................ 7,317
Net unrealized holding gains (losses)
on available-for-sale securities.................................. (743)
Accumulated net gains (losses) on cash flow hedges................ 0
Cumulative foreign currency translation adjustments............... 16
TOTAL EQUITY CAPITAL.............................................. 18,817
--------------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $ 286,369
==============
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-5-
<PAGE>
Exhibit 99.1
LETTER OF TRANSMITTAL
To Exchange
9.50% Series A Capital Securities
of
First Commonwealth Capital Trust I
Pursuant to the Prospectus
dated , 1999
by
First Commonwealth Capital Trust I
FIRST COMMONWEALTH CAPITAL TRUST I WILL ACCEPT ALL ORIGINAL CAPITAL
SECURITIES (AS HEREINAFTER DEFINED) TENDERED AND NOT WITHDRAWN BEFORE 5:00
P.M., NEW YORK CITY TIME, ON , 1999, UNLESS EXTENDED (THE "EXPIRATION
DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME BEFORE 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
The Exchange Agent is:
The Chase Manhattan Bank
By Hand: By Facsimile:
By Mail or Overnight
Delivery:
The Chase Manhattan Bank (212) 638-7380 or
Corporate Trust Securities Window (212) 638-7381
The Chase Manhattan Bank
55 Water Street
Money Management Room 234 To confirm receipt:
Operations
North Building
55 Water Street New York, NY 10041 (212) 638-0828
Room 234 Attention: Carlos Esteves
North Building
New York, NY 10041
Attention: Carlos Esteves
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
The undersigned acknowledges receipt of the Prospectus dated , 1999
(the "Prospectus"), of First Commonwealth Capital Trust I (the "Trust"), and
this Letter of Transmittal (the "Letter of Transmittal"), which together with
the Prospectus constitutes the Trust's offer (the "Exchange Offer") to
exchange up to $35,000,000 aggregate liquidation amount of its 9.50% Series B
Capital Securities (the "Exchange Capital Securities") for a like aggregate
liquidation amount of its outstanding 9.50% Series A Capital Securities (the
"Original Capital Securities"). Holders may tender their Original Capital
Securities in whole or in part in a liquidation amount of not less that
$100,000 or any integral multiple of $1,000 liquidation amount in excess
thereof, provided, however, that if any Original Capital Securities are
tendered in exchange in part, the untendered liquidation amount must be
$100,000 or any integral multiple of $1,000 in excess thereof. Recipients of
the Prospectus should read the requirements described in such Prospectus with
respect to eligibility to participate in the Exchange Offer. Capitalized terms
used but not defined herein have the meaning given to them in the Prospectus.
The undersigned hereby tenders the Original Capital Securities described in
the box entitled "Description of Original Capital Securities" below pursuant
to the terms and conditions described in the Prospectus and this Letter of
Transmittal. The undersigned is the registered owner of all the Original
Capital Securities and the undersigned represents that it has received from
each beneficial owner of Original Capital Securities ("Beneficial Owners") a
duly completed and executed form of "Instruction to Registered Holder from
Beneficial Owner" accompanying this Letter of Transmittal, instructing the
undersigned to take the action described in this Letter of Transmittal.
<PAGE>
This Letter of Transmittal is to be used only by a holder of Original
Capital Securities (i) if certificates representing Original Capital
Securities are to be forwarded herewith, or (ii) if delivery of Original
Capital Securities is to be made by book-entry transfer to the exchange
agent's account at The Depository Trust Company (the "Depositary"), pursuant
to the procedures set forth in the section of the Prospectus entitled "The
Exchange Offer--Procedures for Tendering Original Capital Securities." If
delivery of the Original Capital Securities is to be made by book-entry
transfer to the account maintained by the exchange agent (the "Exchange
Agent") at the Depositary, this Letter of Transmittal need not be manually
executed; provided, however, that tenders of the Original Capital Securities
must be effected in accordance with the procedures mandated by the
Depositary's Automated Tender Offer Program and the procedures set forth in
the Prospectus under the caption "The Exchange Offer--Procedures for Tendering
Original Capital Securities--Book-Entry Transfer."
The undersigned hereby represents and warrants that the information set
forth in the box entitled "Beneficial Owner(s)" is true and correct.
Any Beneficial Owner whose Original Capital Securities are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender should contact such registered holder of Original Capital
Securities promptly and instruct such registered holder of Original Capital
Securities to tender on behalf of the Beneficial Owner. If such Beneficial
Owner wishes to tender on its own behalf, such Beneficial Owner must, before
completing and executing this Letter of Transmittal and delivering its
Original Capital Securities, either make appropriate arrangements to register
ownership of the Original Capital Securities in such Beneficial Owner's name
or obtain a properly completed bond power from the registered holder of
Original Capital Securities. The transfer of record ownership may take
considerable time.
To properly complete this Letter of Transmittal, a holder of Original
Capital Securities must (i) complete the box entitled "Description of Original
Capital Securities," (ii) if appropriate, check and complete the boxes
relating to book-entry transfer, guaranteed delivery, Special Issuance
Instructions and Special Delivery Instructions, (iii) sign the Letter of
Transmittal by completing the box entitled "Sign Here," and (iv) complete the
Substitute Form W-9. Each holder of Original Capital Securities should
carefully read the detailed instructions below before completing the Letter of
Transmittal.
Holders of Original Capital Securities who desire to tender their Original
Capital Securities for exchange and (i) whose Original Capital Securities are
not immediately available, (ii) who cannot deliver their Original Capital
Securities and all other documents required hereby to the Exchange Agent on or
before the Expiration Date, or (iii) who are unable to complete the procedure
for book-entry transfer on a timely basis, must tender the Original Capital
Securities pursuant to the guaranteed delivery procedures set forth in the
section of the Prospectus entitled "The Exchange Offer--Procedures for
Tendering Original Capital Securities--Guaranteed Delivery." See Instruction
2.
Holders of Original Capital Securities who wish to tender their Original
Capital Securities for exchange must, at a minimum, complete columns (1)
through (3) in the box below entitled "Description of Original Capital
Securities" and sign the box below entitled "Sign Here." If only those columns
are completed, such holder of Original Capital Securities will have tendered
for exchange all Original Capital Securities listed in column (3) below. If
the holder of Original Capital Securities wishes to tender for exchange less
than all of such Original Capital Securities, column (4) must be completed in
full. In such case, such holder of Original Capital Securities should refer to
Instruction 5.
2
<PAGE>
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(1) (2) (3) (4)
- ---------------------------------------------------------------------------------------------------------------
Principal Amount
Tendered
For Exchange
(only if
different
amount from
Original Capital column (3))
Securities (must be at
Name(s) and Address(es) of Registered Holder(s) of Number(s)/1/ least $100,000
Original Capital Securities, exactly as name(s) appear(s) (Attach signed Aggregate and in integral
on Original Capital Securities Certificate(s) list if Principal multiples
(Please fill in, if blank) necessary) Amount of $1,000)/2/
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
1 Column (2) need not be completed by holders of Original Capital
Securities tendering Original Capital Securities for exchange by book-
entry transfer. Please check the appropriate box below and provide the
requested information.
2 Column (4) need not be completed by holders of Original Capital
Securities who wish to tender for exchange the principal amount of
Original Capital Securities listed in Column (3). Completion of column
(4) will indicate that the holder of Original Capital Securities wishes
to tender for exchange only the principal amount of Original Capital
Securities indicated in column (4).
[_]CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE ENCLOSED HEREWITH.
[_]CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH THE DEPOSITARY AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE
INSTITUTIONS (AS HEREINAFTER DEFINED) ONLY):
Name of Tendering Institution ___________________________________________
Account Number __________________________________________________________
VOI Number ______________________________________________________________
[_]CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY ENCLOSED HEREWITH AND COMPLETE
THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY): (See Instruction 2)
Name of Registered Holder of Original Capital Securities ________________
Date of Execution of Notice of Guaranteed Delivery ______________________
Window Ticket Number (if available) _____________________________________
Name of Institution that guaranteed delivery ____________________________
Account Number (if delivered by book-entry transfer) DTC A/C # __________
VOI # ________________________________
3
<PAGE>
[_]CHECK HERE IF ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS (AS HEREINAFTER
DEFINED) ONLY):
Name of Tendering Institution __________________________________________
Address: _______________________________________________________________
Telephone (including area code): _______________________________________
DTC Account Number _____________________________________________________
VOI Number _____________________________________________________________
4
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS (See SPECIAL DELIVERY INSTRUCTIONS
Instructions 1, 6, 7 and 8) (See Instructions 1, 6, 7 and 8)
To be completed ONLY (i) if the To be completed ONLY if the Ex-
Exchange Capital Securities is- change Capital Securities issued
sued in exchange for Original in exchange for Original Capital
Capital Securities, certificates Securities or certificates for
for Original Capital Securities Original Capital Securities in a
in a principal amount not ex- principal amount not exchanged
changed for Exchange Capital Se- for Exchange Capital Securities
curities or Original Capital Se- or Original Capital Securities
curities (if any) not tendered (if any) not tendered for ex-
for exchange, are to be issued in change, are to be mailed or de-
the name of someone other than livered to someone other than the
the undersigned, or (ii) if Orig- undersigned, or to the under-
inal Capital Securities tendered signed at an address other than
by book-entry transfer which are the address shown below the
not exchanged are to be returned undersigned's signature.
by credit to an account main-
tained at the Depositary. Mail or delivered to:
Issue to: Name______________________________
(Please Print)
Name _____________________________
(Please Print) Address __________________________
Address __________________________ __________________________________
__________________________________ __________________________________
__________________________________ __________________________________
(Include Zip Code)
__________________________________
(Include Zip Code) __________________________________
(Tax Identification or Social
__________________________________ Security Number)
(Tax Identification or Social
Security Number)
Credit Original Capital Securi-
ties not exchanged and delivered
by book-entry transfer to the De-
positary account set forth below:
__________________________________
(Account Number)
BENEFICIAL OWNER(S)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
State of Principal Residence of Each Principal Amount of Original Capital Securities
Beneficial Owner of Original Capital Securities Held for Account of Beneficial Owner(s)
- -------------------------------------------------------------------------------------------------
<S> <C>
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
If delivery of Original Capital Securities is to be made by book-entry
transfer to the account maintained by the Exchange Agent at the Depositary,
then tenders of Original Capital Securities must be effected in accordance
with the procedures mandated by the Depositary's Automated Tender Offer
Program and the procedures set forth in the Prospectus under the caption "The
Exchange Offer--Procedures for Tendering Original Capital Securities--Book-
Entry Transfer."
5
<PAGE>
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Pursuant to the offer by First Commonwealth Capital Trust I (the "Trust"),
upon the terms and subject to the conditions set forth in the Prospectus dated
, 1999 (the "Prospectus") and this Letter of Transmittal (the "Letter of
Transmittal"), which together with the Prospectus constitutes the Trust's
offer (the "Exchange Offer") to exchange up to $35,000,000 aggregate
liquidation amount of its 9.50% Series B Capital Securities (the "Exchange
Capital Securities") for a like aggregate liquidation amount of its
outstanding 9.50% Series A Capital Securities (the "Original Capital
Securities"), the undersigned hereby tenders to The Chase Manhattan Bank for
exchange the Original Capital Securities indicated above.
By executing this Letter of Transmittal and subject to and effective upon
acceptance for exchange of the Original Capital Securities tendered for
exchange herewith, the undersigned will have irrevocably sold, assigned,
transferred and exchanged to the Trust all right, title and interest in, to
and under all of the Original Capital Securities tendered for exchange hereby,
and hereby appoints the Exchange Agent as the true and lawful agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as
agent of the Trust) of such holder of Original Capital Securities with respect
to such Original Capital Securities, with full power of substitution to (i)
deliver certificates representing such Original Capital Securities, or
transfer ownership of such Original Capital Securities on the account books
maintained by the Depositary (together, in any such case, with all
accompanying evidences of transfer and authenticity), to the Trust, (ii)
present and deliver such Original Capital Securities for transfer on the books
of the Trust, and (iii) receive all benefits and otherwise exercise all rights
and incidents of beneficial ownership with respect to such Original Capital
Securities, all in accordance with the terms of the Exchange Offer. The power
of attorney granted in this paragraph shall be deemed to be irrevocable and
coupled with an interest.
The undersigned hereby represents and warrants that (i) the undersigned is
the owner; (ii) has a net long position within the meaning of Rule 14e-4 under
the Securities Exchange Act as amended ("Rule 14e-4") equal to or greater than
the principal amount of Original Capital Securities tendered hereby; (iii) the
tender of such Original Capital Securities complies with Rule 14e-4 (to the
extent that Rule 14e-4 is applicable to such exchange); (iv) the undersigned
has full power and authority to tender, exchange, assign and transfer the
Original Capital Securities; and (v) that when such Original Capital
Securities are accepted for exchange by the Trust, the Trust will acquire good
and marketable title thereto, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claims. The
undersigned will, upon receipt, execute and deliver any additional documents
deemed by the Exchange Agent or the Trust to be necessary or desirable to
complete the exchange, assignment and transfer of the Original Capital
Securities tendered for exchange hereby.
The undersigned hereby further represents to the Trust that (i) the Exchange
Capital Securities to be acquired by the undersigned in exchange for the
Original Capital Securities tendered hereby and any Beneficial Owner(s) of
such Original Capital Securities in connection with the Exchange Offer will be
acquired by the undersigned and such Beneficial Owner(s) in the ordinary
course of business of the undersigned, (ii) the undersigned (if not a broker-
dealer referred to in the last sentence of this paragraph) are not
participating and do not intend to participate in the distribution of the
Exchange Capital Securities, (iii) the undersigned have no arrangement or
understanding with any person to participate in the distribution of the
Exchange Capital Securities, (iv) the undersigned and each Beneficial Owner
acknowledge and agree that any person participating in the Exchange Offer for
the purpose of distributing the Exchange Capital Securities must comply with
the registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction of the Exchange Capital
Securities acquired by such person and cannot rely on the position of the
staff of the SEC set forth in certain no-action letters, (v) the undersigned
and each Beneficial Owner understand that a secondary resale transaction
described in clause (iv) above should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or Item 508, as applicable, of Regulation S-K of the SEC, and (vi) neither
the undersigned nor any Beneficial Owner is an "affiliate" of the
6
<PAGE>
Trust, as defined under Rule 405 under the Securities Act. If the undersigned
is a broker-dealer that will receive Exchange Capital Securities for its own
account in exchange for Original Capital Securities that were acquired as a
result of market making activities or other trading activities, it
acknowledges that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Capital
Securities received in respect of such Original Capital Securities pursuant to
the Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For purposes of the Exchange Offer, the Trust will be deemed to have
accepted for exchange, and to have exchanged, validly tendered Original
Capital Securities, if, as and when the Trust gives oral or written notice
thereof to the Exchange Agent. Tenders of Original Capital Securities for
exchange may be withdrawn at any time before 5:00 p.m., New York City time, on
the Expiration Date. See "The Exchange Offer--Withdrawal Rights" in the
Prospectus. Any Original Capital Securities tendered by the undersigned and
rejected for exchange will be returned to the undersigned at the address set
forth above unless otherwise indicated in the box above entitled "Special
Delivery Instructions."
The undersigned acknowledges that the Trust's acceptance of Original Capital
Securities validly tendered for exchange pursuant to any one of the procedures
described in the section of the Prospectus entitled "The Exchange Offer" and
in the instructions hereto will constitute a binding agreement between the
undersigned and the Trust upon the terms and subject to the conditions of the
Exchange Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Original Capital Securities not tendered for
exchange in the name(s) of the undersigned. Similarly, unless otherwise
indicated in the box entitled "Special Delivery Instructions," please mail any
certificates for Original Capital Securities not tendered or exchanged (and
accompanying documents, as appropriate) to the undersigned at the address
shown below the undersigned's signature(s). If both "Special Issuance
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the Exchange Capital Securities issued in
exchange for the Original Capital Securities accepted for exchange in the
name(s) of, and return any Original Capital Securities not tendered for
exchange or not exchanged to, the person(s) so indicated. The undersigned
recognizes that the Trust has no obligation pursuant to the "Special Issuance
Instructions" and "Special Delivery Instructions" to transfer any Original
Capital Securities from the name of the holder of Original Capital Securities
thereof if the Trust rejects for exchange any of the Original Capital
Securities so tendered for exchange or if such transfer would not be in
compliance with any transfer restrictions applicable to such Original Capital
Securities.
To validly tender Original Capital Securities for exchange, holders of
Original Capital Securities must complete, execute, and deliver this Letter of
Transmittal.
Except as stated in the Prospectus, all authority herein conferred or agreed
to be conferred shall survive the death or incapacity of the undersigned, and
any obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Except as
otherwise stated in the Prospectus, this tender for exchange of Original
Capital Securities is irrevocable.
7
<PAGE>
SIGN HERE
X ___________________________________ X ___________________________________
(Signature(s) of Owner(s))
Dated ______________________________, 1999
Must be signed by the registered holder(s) of Original Capital Securities
exactly as name(s) appear(s) on certificate(s) representing the Original
Capital Securities or on a security position listing or by person(s)
authorized to become registered Original Capital Securities holder(s) by
certificates and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
please provide the following information. (See Instruction 6).
Name(s)______________________________________________________________________
______________________________________________________________________
(Please Print)
Capacity (full title) _______________________________________________________
Address______________________________________________________________________
______________________________________________________________________
(Include Zip Code)
Area Code and Telephone No. ( ) _____________________________________________
Tax Identification or Social Security Nos. __________________________________
Please complete Substitute Form W-9
GUARANTEE OF SIGNATURE(S)
(Signature(s) must be guaranteed if required by Instruction 1)
Authorized Signature ________________________________________________________
Dated _______________________________________________________________________
Name and Title ______________________________________________________________
(Please Print)
Name of Firm ________________________________________________________________
Address _____________________________________________________________________
Telephone (including area code): ____________________________________________
8
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is a member of a registered national securities exchange or a member of
the National Association of Securities Dealers, Inc. or is a commercial bank
or trust company having an office or correspondence in the United States or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934 which is a member of one of the following
recognized Signature Guarantee Programs (an "Eligible Institution"):
.The Securities Transfer Agents Medallion Program (STAMP);
.The New York Stock Exchange Medallion Signature Program (MSP); or
.The Stock Exchange Medallion Program (SEMP).
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the registered holder(s) of the Original
Capital Securities tendered herewith and such registered holder(s) have not
completed the box entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" on this Letter of Transmittal, or (ii) if such
Original Capital Securities are tendered for the account of an Eligible
Institution. In all other cases, all signatures must be guaranteed by an
Eligible Institution.
2. Delivery of this Letter of Transmittal and Original Capital Securities;
Guaranteed Delivery Procedure. This Letter of Transmittal is to be completed
by holders of Original Capital Securities (i) if certificates are to be
forwarded herewith, or (ii) if tenders are to be made pursuant to the
procedures for tender by book-entry transfer or guaranteed delivery set forth
in the section of the Prospectus entitled "The Exchange Offer--Procedures for
Tendering Original Capital Securities." Certificates for all physically
tendered Original Capital Securities or any confirmation of a book-entry
transfer (a "Book-Entry Confirmation"), as well as a properly completed and
duly executed copy of this Letter of Transmittal or facsimile hereof, and any
other documents required by this Letter of Transmittal, must be received by
the Exchange Agent at its address set forth on the cover of this Letter of
Transmittal before 5:00 p.m., New York City time, on the Expiration Date.
Holders of Original Capital Securities who elect to tender Original Capital
Securities and (i) whose Original Capital Securities are not immediately
available, (ii) who cannot deliver the Original Capital Securities or other
required documents to the Exchange Agent before 5:00 p.m., New York City time
on the Expiration Date, or (iii) who are unable to complete the procedure for
book-entry transfer on a timely basis, may have such tender effected if (a)
such tender is made by or through an Eligible Institution; and (b) before 5:00
p.m., New York City time, on the Expiration Date, the Exchange Agent has
received from such Eligible Institution a properly completed and duly executed
Letter of Transmittal (or a facsimile hereof) and Notice of Guaranteed
Delivery (by telegram, telex, facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder of such Original Capital
Securities, the certificate numbers(s) of such Original Capital Securities and
the principal amount of Original Capital Securities tendered for exchange,
stating that tender is being made thereby and guaranteeing that, within five
New York Stock Exchange trading days after the Expiration Date, the
certificates representing such Original Capital Securities (or a Book-Entry
Confirmation), in proper form for transfer, and any other documents required
by this Letter of Transmittal, will be deposited by such Eligible Institution
with the Exchange Agent; and (c) certificates for all tendered Original
Capital Securities, or a Book-Entry Confirmation, together with a copy of the
previously executed Letter of Transmittal (or facsimile thereof) and any other
documents required by this Letter of Transmittal are received by the Exchange
Agent within five New York Stock Exchange trading days after the Expiration
Date.
The method of delivery of Original Capital Securities, this letter of
transmittal and all other required documents is at the election and risk of
the tendering holder of Original Capital Securities. Except as otherwise
provided below, the delivery will be deemed made only when actually received
or confirmed by the Exchange Agent. If delivery is by mail, registered mail
with return receipt requested, properly insured, is recommended. Neither this
letter of transmittal nor any Original Capital Securities should be sent to
the Trust or The Chase Manhattan Bank.
9
<PAGE>
No alternative, conditional or contingent tenders will be accepted. All
tendering holders of Original Capital Securities, by execution of this Letter
of Transmittal (or facsimile hereof, if applicable), waive any right to
receive notice of the acceptance of their Original Capital Securities for
exchange.
3. Inadequate Space. If the space provided in the box entitled "Description
of Original Capital Securities" above is inadequate, the certificate numbers
and principal amounts of the Original Capital Securities being tendered should
be listed on a separate signed schedule affixed hereto.
4. Withdrawals. A tender of Original Capital Securities may be withdrawn at
any time before 5:00 p.m., New York City time, on the Expiration Date by
delivery of written notice of withdrawal to the Exchange Agent at the address
set forth on the cover of this Letter of Transmittal. To be effective, a
notice of withdrawal of Original Capital Securities must (i) specify the name
of the person who tendered the Original Capital Securities to be withdrawn
(the "Depositor"), (ii) identify the Original Capital Securities to be
withdrawn (including the certificate number or numbers and aggregate principal
amount of such Original Capital Securities), and (iii) be signed by the holder
of Original Capital Securities in the same manner as the original signature on
the Letter of Transmittal by which such Original Capital Securities were
tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the applicable transfer agent
register the transfer of such Original Capital Securities into the name of the
person withdrawing the tender. Withdrawals of tenders of Original Capital
Securities may not be rescinded, and any Original Capital Securities withdrawn
will thereafter be deemed not validly tendered for purposes of the Exchange
Offer and no Exchange Capital Securities will be issued with respect thereto
unless the Original Capital Securities so withdrawn are validly retendered.
Properly withdrawn Original Capital Securities may be retendered by following
one of the procedures described in the section of the Prospectus entitled "The
Exchange Offer--Procedures for Tendering Original Capital Securities" at any
time before 5:00 p.m., New York City time, on the Expiration Date.
5. Partial Tenders. (Not applicable to holders of Original Capital
Securities who tender Original Capital Securities by book-entry transfer).
Holders may tender their Original Capital Securities in whole or in part in a
liquidation amount of not less that $100,000 or any integral multiple of
$1,000 liquidation amount in excess thereof, provided, however, that if any
Original Capital Securities are tendered in exchange in part, the untendered
liquidation amount must be $100,000 or any integral multiple of $1,000 in
excess thereof. If a tender for exchange is to be made with respect to less
than the entire principal amount of any Original Capital Securities, fill in
the principal amount of Original Capital Securities which are tendered for
exchange in column (4) of the box entitled "Description of Original Capital
Securities," as more fully described in the footnotes thereto. In case of a
partial tender for exchange, a new certificate, in fully registered form, for
the remainder of the principal amount of the Original Capital Securities, will
be sent to the holders of Original Capital Securities unless otherwise
indicated in the appropriate box on this Letter of Transmittal as promptly as
practicable after the expiration or termination of the Exchange Offer.
6. Signatures on this Letter of Transmittal, Powers of Attorney and
Endorsements.
(a) The signature(s) of the holder of Original Capital Securities on this
Letter of Transmittal must correspond with the name(s) as written on the face
of the Original Capital Securities without alternation, enlargement or any
change whatsoever.
(b) If tendered Original Capital Securities are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Original Capital Securities are registered in different
names on several certificates, it will be necessary to complete, sign and
submit as many separate copies of this Letter of Transmittal and any necessary
or required documents as there are different registrations or certificates.
(d) When this Letter of Transmittal is signed by the holder of the Original
Capital Securities listed and transmitted hereby, no endorsements of Original
Capital Securities or separate powers of attorney are required.
10
<PAGE>
If, however, Original Capital Securities not tendered or rejected, are to be
issued or returned in the name of a person other than the holder of Original
Capital Securities, then the Original Capital Securities transmitted hereby
must be endorsed or accompanied by appropriate powers of attorney in a form
satisfactory to the Trust, in either case signed exactly as the name(s) of the
holder of Original Capital Securities appear(s) on the Original Capital
Securities. Signatures on such Original Capital Securities or powers of
attorney must be guaranteed by an Eligible Institution (unless signed by an
Eligible Institution).
(e) If this Letter of Transmittal or Original Capital Securities or powers
of attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the Trust of their authority so to act must be
submitted.
(f) If this Letter of Transmittal is signed by a person other than the
registered holder of Original Capital Securities listed, the Original Capital
Securities must be endorsed or accompanied by appropriate powers of attorney,
in either case signed exactly as the name(s) of the registered holder of
Original Capital Securities appear(s) on the certificates. Signatures on such
Original Capital Securities or powers of attorney must be guaranteed by an
Eligible Institution (unless signed by an Eligible Institution).
7. Transfer Taxes. Holders tendering pursuant to the Exchange Offer will not
be obligated to pay brokerage commissions or fees to pay transfer taxes with
respect to their exchange under the Exchange Offer unless the box entitled
"Special Issuance Instructions" in this Letter of Transmittal has been
completed, or unless the securities to be received upon exchange are to be
issued to any person other than the holder of the Original Capital Securities
tendered for exchange. The Trust will pay all other charges or expenses in
connection with the Exchange Offer. If holders tender Original Capital
Securities for exchange and the Exchange Offer is not consummated,
certificates representing the old notes will be returned to the holders at the
Trust's expense.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the certificate(s) specified in this
Letter of Transmittal.
8. Special Issuance and Delivery Instructions. If the Exchange Capital
Securities are to be issued, or if any Original Capital Securities not
tendered for exchange are to be issued or sent to someone other than the
holder of Original Capital Securities or to an address or other than that
shown above, the appropriate boxes on this Letter of Transmittal should be
completed. Holders of Original Capital Securities tendering Original Capital
Securities by book-entry transfer may request that Original Capital Securities
rejected be credited to such account maintained at the Depositary as such
holder of Original Capital Securities may designate.
9. Irregularities. All questions as to the form of documents and the
validity, eligibility (including time or receipt), acceptance and withdrawal
of Original Capital Securities will be determined by the Trust, in its sole
discretion, whose determination shall be final and binding. The Trust reserves
the absolute right to reject any or all tenders for exchange of any particular
Original Capital Securities that are not in proper form, or the acceptance of
which would, in the opinion of the Trust or its counsel, be unlawful. The
Trust reserves the absolute right to waive any defect, irregularity or
condition of tender for exchange with regard to any particular Original
Capital Securities. The Trust's interpretation of the term of, and conditions
to, the Exchange Offer (including the instructions herein) will be final and
binding. Unless waived, any defects or irregularities in connection with the
Exchange Offer must be cured within such time as the Trust shall determine.
Neither the Trust, the Exchange Agent nor any other person shall be under any
duty to give notice of any defects or irregularities in Original Capital
Securities tendered for exchange, nor shall any of them incur any liability
for failure to give such notice. A tender of Original Capital Securities will
not be deemed to have been made until all defects and irregularities with
respect to such tender have been cured or waived. Any Original Capital
Securities received by the Exchange Agent that are not properly tendered and
as to which the defects or irregularities have not been cured or waived will
be returned by the Exchange Agent to the tendering holders, unless otherwise
provided in this Letter of Transmittal, as soon as practicable following the
Expiration Date.
11
<PAGE>
10. Waiver of Conditions. The Trust reserves the absolute right to waive,
amend or modify certain of the specified conditions as described under "The
Exchange Offer--Conditions to the Exchange Offer" in the Prospectus in the
case of any Original Capital Securities tendered (except as otherwise provided
in the Prospectus).
11. Mutilated, Lost, Stolen or Destroyed Original Capital Securities. If a
holder of Original Capital Securities desires to tender Original Capital
Securities pursuant to the Exchange Offer, but any of such Original Capital
Securities has been mutilated, lost, stolen or destroyed, such holder of
Original Capital Securities should write to or telephone The Chase Manhattan
Bank at the address listed below, concerning the procedures for obtaining
replacement certificates for such Original Capital Securities, arranging for
indemnification or any other matter that requires handling by The Chase
Manhattan Bank:
The Chase Manhattan Bank
55 Water Street
Room 234
North Building
New York, NY 10041
Attention: Carlos Esteves
(212) 638-0828
12. Requests for Information or Additional Copies. Requests for information
or for additional copies of the Prospectus and this Letter of Transmittal may
be directed to the Exchange Agent at the address or telephone number set forth
on the cover of this Letter of Transmittal.
IMPORTANT: This Letter of Transmittal (or a facsimile thereof, if
applicable) together with certificates, or confirmation of book-entry or the
Notice of Guaranteed Delivery, and all other required documents must be
received by the Exchange Agent before 5:00 p.m., New York City time, on the
Expiration Date.
12
<PAGE>
IMPORTANT TAX INFORMATION
Under current federal income tax law, a holder of Original Capital
Securities whose tendered Original Capital Securities are accepted for
exchange may be subject to backup withholding unless the holder provides the
Trust (as payer), through the Exchange Agent, with either (i) such holder's
correct taxpayer identification number ("TIN") on Substitute Form W-9 attached
hereto, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such holder of Original Capital Securities is awaiting a TIN) and that
(A) the holder of Original Capital Securities has not been notified by the
Internal Revenue Service that he or she is subject to backup withholding as a
result of a failure to report all interest or dividends or (B) the Internal
Revenue Service has notified the holder of Original Capital Securities that he
or she is no longer subject to backup withholding; or (ii) an adequate basis
for exemption from backup withholding. If such holder of Original Capital
Securities is an individual, the TIN is such holder's social security number.
If the Exchange Agent is not provided with the correct taxpayer identification
number, the holder of Original Capital Securities may be subject to certain
penalties imposed by the Internal Revenue Service.
Certain holders of Original Capital Securities (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. Exempt holders of Original Capital
Securities should indicate their exempt status on Substitute Form W-9. A
foreign individual may qualify as an exempt recipient by submitting to the
Exchange Agent a properly completed Internal Revenue Service Form W-8 (which
the Exchange Agent will provide upon request) signed under penalty of perjury,
attesting to the holder's exempt status. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 (the
"Guidelines") for additional instructions.
If backup withholding applies, the Trust is required to withhold 31% of any
payment made to the holder of Original Capital Securities or other payee.
Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
The holder of Original Capital Securities is required to give the Exchange
Agent the TIN (e.g., social security number or employer identification number)
of the record owner of the Original Capital Securities. If the Original
Capital Securities are held in more than one name or are not held in the name
of the actual owner, consult the enclosed Guidelines for additional guidance
regarding which number to report.
13
<PAGE>
PAYER'S NAME: FIRST COMMONWEALTH CAPITAL TRUST I
- -------------------------------------------------------------------------------
Part 1 -- PLEASE PROVIDE
YOUR TIN IN THE BOX AT
RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW.
SUBSTITUTE ----------------------
Form W-9 Social Security Number
OR
----------------------
Department of the
Treasury Internal Employer Identification
Revenue Service Number
--------------------------------------------------------
Part 2 --
Certification Under penalties
of Perjury, I certify that: Part 3 --
Payer's Request for (1) The number shown on this
Taxpayer form is my current taxpayer Awaiting
Identification identification number (or I TIN [_]
Number (TIN) am waiting for a number to
be issued to me) and
(2) I am not subject to backup
withholding either because
I have not been notified by
the Internal Revenue
Service (the "IRS") that I
am subject to backup
withholding as a result of
a failure to report all
interest or dividends, or
the IRS has notified me
that I am no longer subject
to backup withholding.
--------------------------------------------------------
Certificate instructions -- You must cross out item
(2) in Part 2 above if you have been notified by the
IRS that you are subject to backup withholding be-
cause of underreporting interest or dividends on your
tax return. However, if after being notified by the
IRS that you are subject to backup withholding you
receive another notification from the IRS stating
that you are no longer subject to backup withholding,
do not cross out item (2).
SIGNATURE ____________________ DATE _________________
NAME _________________________________________________
ADDRESS ______________________________________________
CITY ____________ STATE ___________ ZIP CODE ________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-
9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECK THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
PAYER'S NAME: FIRST COMMONWEALTH CAPITAL TRUST I
- -------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver such an application in the near future. I
understand that if I do not provide a taxpayer identification number with
sixty (60) days, 31% of all reportable payments made to me thereafter will be
withheld until I provide such a number.
-------------------------------------- --------------------------------------
Signature Date
14
<PAGE>
INSTRUCTION TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF
FIRST COMMONWEALTH CAPITAL TRUST I
9.50% Series A Capital Securities
The undersigned hereby acknowledges receipt of the Prospectus dated ,
1999 (the "Prospectus") of First Commonwealth Capital Trust I, a Delaware
corporation (the "Trust") and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), that together constitute the Trust's offer (the
"Exchange Offer"). Capitalized terms used but not defined herein have the
meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be taken
by you relating to the Exchange Offer with respect to the 9.50% Series A
Capital Securities (the "Original Capital Securities") held by you for the
account of the undersigned.
The aggregate face amount of the Original Capital Securities held by you for
the account of the undersigned is (fill in amount):
$ of the Original Capital Securities.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
[_]To TENDER the following Original Capital Securities held by your for
the account of the undersigned (insert principal amount of Original
Capital Securities to be tendered, if any):
$ of the Original Capital Securities.
[_]NOT to TENDER any Original Capital Securities held by you for the
account of the undersigned.
If the undersigned instructs you to tender the Original Capital Securities
held by you for the account of the undersigned, it is understood that you are
authorized (a) to make, on behalf of the undersigned (and the undersigned, by
its signature below, hereby makes to you), the representations and warranties
contained in the Letter of Transmittal that are to be made with respect to the
undersigned as a Beneficial Owner of the Original Capital Securities,
including but not limited to the representations that (i) the undersigned's
principal residence is in the state of (fill in state) , (ii) the
undersigned is acquiring the 9.50% Series B Capital Securities (the "Exchange
Capital Securities") in the ordinary course of business of the undersigned,
(iii) the undersigned is not participating, does not intend to participate,
and has no arrangement or understanding with any person to participate, in the
distribution of Exchange Capital Securities, (iv) the undersigned acknowledges
that any person participating in the Exchange Offer for the purpose of
distributing the Exchange Capital Securities must comply with the registration
and prospectus delivery requirements of the Securities Act of 1933, as
amended, in connection with any resale transaction of the Exchange Capital
Securities acquired by such person and cannot rely on the position of the
Staff of the Securities and Exchange Commission set forth in certain no-action
letters (See the section of the Prospectus entitled "The Exchange Offer--
Resales of Exchange Capital Securities"), (v) the undersigned understands that
a secondary resale transaction described in clause (iv) above should be
covered by an effective registration statement containing the selling security
holder information required by Item 507 or Item 508, if applicable, of
Regulation S-K of the Commission, (vi) the undersigned is not an "affiliate,"
as defined in Rule 405 under the Securities Act, of the Trust, (vii) if the
undersigned is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, a distribution of Exchange Capital Securities, and (viii)
if the undersigned is a broker-dealer that will receive Exchange Capital
Securities for its own account in exchange for Original Capital Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Capital Securities received in respect of such Original Capital
Securities pursuant to the Exchange Offer; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act; (b) to agree, on
behalf of the undersigned, as set forth in the Letter of Transmittal; and (c)
to take such other action as necessary under the Prospectus or the Letter of
Transmittal to effect the valid tender of Original Capital Securities.
SIGN HERE
Name of Beneficial Owner(s): __________________________________________________
Signature(s): _________________________________________________________________
Name(s) (please print): _______________________________________________________
Address: ______________________________________________________________________
Telephone Number: _____________________________________________________________
Taxpayer Identification or Social Security Number: ____________________________
Date: _________________________________________________________________________
15
<PAGE>
Exhibit 99.2
Notice of Guaranteed Delivery
for Tender of
9.50% Series A Capital Securities
(Liquidation Amount $1,000 per Capital Security)
OF
FIRST COMMONWEALTH CAPITAL TRUST I
Fully and Unconditionally Guaranteed as Described in the Prospectus
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i) the
procedures for delivery by book-entry transfer cannot be completed on or prior
to the expiration date (as identified in the Prospectus referred to below),
(ii) certificates for the Trust's (as defined below) 9.50% Series A Capital
Securities (the "Original Capital Securities") are not immediately available,
or (iii) the Original Capital Securities, the Letter of Transmittal and all
other required documents cannot be delivered to The Chase Manhattan Bank (the
"Exchange Agent") on or prior to the Expiration Date. This Notice of
Guaranteed Delivery may be delivered by hand, overnight courier or mail, or
transmitted by facsimile transmission, to the Exchange Agent. See "The
Exchange Offer--Procedures for Tendering Original Capital Securities" in the
Prospectus.
The Exchange Agent for the Exchange Offer is: The Chase Manhattan Bank
By Registered or Certified Mail By Hand
or Overnight Delivery
---------------------------
---------------------------
The Chase Manhattan Bank
The Chase Manhattan Bank Corporate Trust Securities Window
Money Management Operations 55 Water Street
55 Water Street Room 234
Room 234 North Building
North Building New York, NY 10041
New York, NY 10041 Attn: Carlos Esteves
Attn: Carlos Esteves
Confirm by telephone or for information call:
(212) 638-0828
Facsimile Transmission (Eligible Institutions Only):
(212) 638-7380 or (212) 638-7381
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA A
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
1
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to First Commonwealth Capital Trust I, a
trust created under the laws of Delaware (the "Trust"), upon the terms and
subject to the conditions set forth in the Prospectus dated , 1999 (as
the same may be amended or supplemented from time to time, the "Prospectus"),
and the related Letter of Transmittal (which together constitute the "Exchange
Offer"), receipt of which is hereby acknowledged, the aggregate liquidation
amount of Original Capital Securities set forth below pursuant to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer--Procedures for Tendering Original Capital Securities."
Aggregate Liquidation Amount Tendered of Original Capital Securities:
Name(s) of Registered
Holder(s)
($)
----------------------------- ----------------------------
(Please print)
Certificate No(s) of Original Capital Securities. (if available):
Address(es)
-----------------------------
----------------------------
----------------------------
Area Code and Telephone
Number(s):
----------------------------
Capacity: ___________________
----------------------------
Signature(s) or Authorized
Signatory:
If Original Capital Securities will be tendered by book-entry transfer,
provide the following information:
Date:
As the Exchange Capital Securities will only be delivered by book-entry
transfer, please fill in the information requested below:
DTC Account No: ____________
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank;
(ii) a broker, dealer, municipal securities broker, municipal securities
dealer, government securities broker or government securities dealer; (iii)
a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association recognized program (each of
the foregoing being referred to as an "Eligible Institution"), hereby
guarantees to deliver to the Exchange Agent, at one of its addresses set
forth above, either the Original Capital Securities tendered hereby in
proper form for transfer, or confirmation of the book-entry transfer of such
Original Capital Securities to the Exchange Agent's account at The
Depository Trust Company (the "Depositary"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together
with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within
three (3) business days after the date of execution of this Notice of
Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Original Capital Securities tendered hereby to the
Exchange Agent within the time period set forth above and that failure to do
so could result in a financial loss to the undersigned.
------------------------------------
Name of Firm: ______________________ (Authorized Signature)
Name: ______________________________
Address: ___________________________ (Please type or print)
------------------------------------ Title: _____________________________
(Zip Code): ________________________
Date: _______________________ , 1999
Area Code and Telephone Number: ____
NOTE: DO NOT SEND ORIGINAL CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF ORIGINAL CAPITAL SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
3
