<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 19, 1997
REGISTRATION NO. 333-
REGISTRATION NO. 333- -01
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
MISSISSIPPI VALLEY BANCSHARES, INC. MVBI CAPITAL TRUST
(EXACT NAME OF REGISTRANT AND CO-REGISTRANT AS SPECIFIED IN CHARTERS)
<TABLE>
<S> <C> <C> <C>
MISSOURI 43-1336298 DELAWARE 43-1771456
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
700 CORPORATE PARK DRIVE, ST. LOUIS, MISSOURI 63105 (314) 268-2580
(ADDRESS(ES), INCLUDING ZIP CODE(S), AND TELEPHONE NUMBER(S), INCLUDING AREA
CODE(S), OF REGISTRANT'S AND CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------------
PAUL M. STRIEKER
EXECUTIVE VICE PRESIDENT
700 CORPORATE PARK DRIVE
ST. LOUIS, MISSOURI 63105
(314) 268-2580
(NAME(S), ADDRESS(ES), INCLUDING ZIP CODE(S), AND TELEPHONE NUMBER(S),
INCLUDING AREA CODE(S), OF AGENT(S) FOR SERVICE)
----------------------------
COPIES TO:
JOHN L. GILLIS, JR., ESQ. THOMAS C. ERB, ESQ.
ARMSTRONG, TEASDALE, SCHLAFLY & DAVIS LEWIS, RICE & FINGERSH, L.C.
ONE METROPOLITAN SQUARE, SUITE 2600 500 NORTH BROADWAY, SUITE 2000
ST. LOUIS, MISSOURI 63102-2740 ST. LOUIS, MISSOURI 63102-2147
(314) 621-5070 (314) 444-7600
----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effectiveness of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvest plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED<F1> PER UNIT<F1> PRICE<F1> FEE<F2>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Preferred Securities of MVBI Capital Trust.......... 598,000 $25.00 $14,950,000 $4,530
- ------------------------------------------------------------------------------------------------------------------------------------
Subordinated Debentures<F3> of Mississippi Valley
Bancshares, Inc................................... <F3> -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Guarantees of Preferred Securities<F4>.............. <F4> -- -- --
====================================================================================================================================
<FN>
<F1>Includes 78,000 Preferred Securities which may be sold by MVBI Capital
Trust to cover over-allotments.
<F2>The registration fee is calculated in accordance with Rule 457(i) and (n).
<F3>The Subordinated Debentures will be purchased by MVBI Capital Trust with
the proceeds of the sale of the Preferred Securities. Such securities may
later be distributed for no additional consideration to the holders of the
Preferred Securities of MVBI Capital Trust upon its dissolution and the
distribution of its assets.
<F4>This Registration Statement is deemed to cover the Subordinated Debentures
of Mississippi Valley Bancshares, Inc., the rights of holders of
Subordinated Debentures of Mississippi Valley Bancshares, Inc. under the
Indenture, and the rights of holders of the Preferred Securities under the
Trust Agreement, the Guarantee and the Expense Agreement entered into by
Mississippi Valley Bancshares, Inc. No separate consideration will be
received for the Guarantee.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED FEBRUARY , 1997
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE *
* SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR *
* MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT *
* BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR *
* THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE *
* SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE *
* UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS *
* OF ANY SUCH STATE. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PROSPECTUS
520,000 PREFERRED SECURITIES
MVBI CAPITAL TRUST
FLOATING RATE CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
Parent Company of
MISSISSIPPI VALLEY SOUTHWEST BANK
BANCSHARES, INC.
-------------------
$13,000,000 FLOATING RATE SUBORDINATED DEBENTURES OF
MISSISSIPPI VALLEY BANCSHARES, INC.
-------------------
The Floating Rate Cumulative Trust Preferred Securities (the "Preferred
Securities") offered hereby represent preferred undivided beneficial interests
in the assets of MVBI Capital Trust, a statutory business trust created under
the laws of the State of Delaware ("MVBI Capital"). Mississippi Valley
Bancshares, Inc., a Missouri corporation (the
(continued on next page)
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol
"MVBIP."
-------------------
SEE "RISK FACTORS" COMMENCING ON PAGE 7 FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
-------------------
THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT
ACCOUNTS, ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NON-
BANKING AFFILIATE OF THE COMPANY (EXCEPT TO THE EXTENT THAT PREFERRED
SECURITIES ARE GUARANTEED BY THE COMPANY AS DESCRIBED HEREIN), ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT RISKS,
INCLUDING POSSIBLE LOSS OF PRINCIPAL.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
===================================================================================================================
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC COMMISSION<F1> MVBI CAPITAL<F2>
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security.......................... $25.00 $ <F2> $25.00
- -------------------------------------------------------------------------------------------------------------------
Total<F3>....................................... $13,000,000 $ <F2> $13,000,000
===================================================================================================================
<FN>
<F1>MVBI Capital and the Company have each agreed to indemnify the Underwriter
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
<F2>In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in the Subordinated Debentures, the Company has
agreed to pay the Underwriter as compensation for its arranging the
investment therein of such proceeds, $ per Preferred Security, or
$ in the aggregate, ($ if the over-allotment option is
exercised in full). See "Underwriting." The Company has also agreed to
pay the expenses of the offering estimated to be $200,000.
<F3>MVBI Capital has granted the Underwriter an option exercisable within 30
days from the date of this Prospectus to purchase up to 78,000 additional
Preferred Securities on the same terms and conditions set forth above to
cover over-allotments, if any. If all such additional Preferred Securities
are purchased, the total Price to Public and Proceeds to MVBI Capital will
be $14,950,000. See "Underwriting."
</TABLE>
-------------------
The Preferred Securities are offered by the Underwriter subject to receipt
and acceptance by it, prior sale and the Underwriter's right to reject any
order in whole or in part and to withdraw, cancel or modify the offer without
notice. It is expected that delivery of certificates for the Preferred
Securities will be made on or about , 1997.
STIFEL, NICOLAUS & COMPANY
INCORPORATED
, 1997
<PAGE> 3
(continued from previous page)
"Company"), will own all the common securities (the "Common Securities"
and, together with the Preferred Securities, the "Trust Securities")
representing undivided beneficial interests in the assets of MVBI Capital.
State Street Bank and Trust Company is the Property Trustee (as defined
herein) of MVBI Capital. MVBI Capital exists for the purpose of issuing the
Preferred Securities and investing the proceeds thereof in an equivalent amount
of Floating Rate Subordinated Debentures (the "Subordinated Debentures") of
the Company. The Subordinated Debentures will mature on March 31, 2027, which
date may be (i) shortened to a date not earlier than March 31, 2002, or (ii)
extended to a date not later than March 31, 2036 if certain conditions are met
(including, in the case of shortening the Stated Maturity (as defined herein),
the Company having received prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") to do so if then required
under applicable capital guidelines or policies of the Federal Reserve). The
Preferred Securities will have a preference under certain circumstances with
respect to cash distributions and amounts payable on liquidation, redemption or
otherwise over the Common Securities. See "Description of the Preferred
Securities--Subordination of Common Securities."
Holders of Preferred Securities are entitled to receive preferential
cumulative cash distributions (the "Distributions"), at the annual rate equal
to 3-Month Treasury (as defined herein) plus % (the "Distribution Rate")
of the liquidation amount of $25 per Preferred Security (the "Liquidation
Amount"), accruing from the date of original issuance and payable quarterly in
arrears on the last day of March, June, September and December of each year,
commencing June 30, 1997. The Company has the right, so long as no Debenture
Event of Default (as defined herein) has occurred and is continuing, to defer
payment of interest on the Subordinated Debentures at any time or from time to
time for a period not to exceed 20 consecutive quarters with respect to each
deferral period (each, an "Extended Interest Payment Period"); provided that
no Extended Interest Payment Period may extend beyond the Stated Maturity of
the Subordinated Debentures. Upon the termination of any such Extended Interest
Payment Period and the payment of all amounts then due, the Company may elect
to begin a new Extended Interest Payment Period subject to the requirements set
forth herein. If interest payments on the Subordinated Debentures are so
deferred, Distributions on the Preferred Securities will also be deferred, and
the Company will not be permitted, subject to certain exceptions described
herein, to declare or pay any cash distributions with respect to its capital
stock or debt securities that rank pari passu with or junior to the
Subordinated Debentures. DURING AN EXTENDED INTEREST PAYMENT PERIOD, INTEREST
ON THE SUBORDINATED DEBENTURES WILL CONTINUE TO ACCRUE (AND THE AMOUNT OF
DISTRIBUTIONS TO WHICH HOLDERS OF THE PREFERRED SECURITIES ARE ENTITLED WILL
ACCUMULATE) AT THE DISTRIBUTION RATE, COMPOUNDED QUARTERLY, AND HOLDERS OF THE
PREFERRED SECURITIES WILL BE REQUIRED TO INCLUDE INTEREST INCOME IN THEIR GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES IN ADVANCE OF RECEIPT OF
THE CASH DISTRIBUTIONS WITH RESPECT TO SUCH DEFERRED INTEREST PAYMENTS. A
HOLDER OF PREFERRED SECURITIES THAT DISPOSES OF ITS PREFERRED SECURITIES
BETWEEN RECORD DATES FOR PAYMENTS OF DISTRIBUTIONS (AND CONSEQUENTLY DOES NOT
RECEIVE A DISTRIBUTION FROM MVBI CAPITAL FOR THE PERIOD PRIOR TO SUCH
DISPOSITION) WILL NEVERTHELESS BE REQUIRED TO INCLUDE ACCRUED BUT UNPAID
INTEREST ON THE SUBORDINATED DEBENTURES THROUGH THE DATE OF DISPOSITION IN
INCOME AS ORDINARY INCOME AND TO ADD SUCH AMOUNT TO ITS ADJUSTED TAX BASIS IN
ITS PRO RATA SHARE OF THE UNDERLYING SUBORDINATED DEBENTURES DEEMED DISPOSED
OF. See "Description of the Subordinated Debentures--Option to Extend Interest
Payment Period," "Certain Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original Issue Discount" and
"--Disposition of Preferred Securities."
The Company and MVBI Capital believe that, taken together, the obligations
of the Company under the Guarantee, the Trust Agreement, the Subordinated
Debentures, the Indenture and the Expense Agreement (each as defined herein)
provide, in the aggregate, a full, irrevocable and unconditional guaranty, on a
subordinated basis, of all of the obligations of MVBI Capital under the
Preferred Securities. See "Relationship Among the Preferred Securities, the
Subordinated Debentures and the Guarantee--Full and Unconditional Guarantee."
The Guarantee of the Company guarantees the payment of Distributions and
payments on liquidation or redemption of the Preferred Securities, but only in
each case to the extent of funds held by MVBI Capital, as described herein. See
"Description of the Guarantee--General." If the Company does not make
interest payments on the Subordinated Debentures held by MVBI Capital, MVBI
Capital will have insufficient funds to pay Distributions on the Preferred
Securities. The Guarantee does not cover payments of Distributions when MVBI
Capital does not have sufficient funds to pay such Distributions. In such
event, a holder of Preferred Securities may institute a legal proceeding
directly against the Company pursuant to the terms of the Indenture to enforce
payments of amounts equal to such Distributions to such holder. See
"Description of the Subordinated Debentures--Enforcement of Certain Rights by
Holders of the Preferred Securities." The obligations of the Company under the
Guarantee and the Preferred Securities are subordinate and junior in right of
payment to all Senior Debt, Subordinated Debt and Additional Senior Obligations
(each as defined herein) of the Company. The Subordinated Debentures are
unsecured obligations of the Company and are subordinated to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company.
(continued on next page)
<PAGE> 4
(continued from previous page)
The Preferred Securities are subject to mandatory redemption, in whole or
in part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to Federal Reserve approval, if then
required under applicable capital guidelines or policies of the Federal
Reserve, the Subordinated Debentures are redeemable prior to maturity at the
option of the Company (i) on or after March 31, 2002, in whole at any time or
in part from time to time, or (ii) at any time, in whole (but not in part),
within 180 days following the occurrence of a Tax Event, a Capital Treatment
Event or an Investment Company Event (each as defined herein), in each case at
a redemption price equal to the accrued and unpaid interest on the Subordinated
Debentures so redeemed to the date fixed for redemption, plus 100% of the
principal amount thereof. See "Description of the Preferred
Securities--Redemption or Exchange."
The Company has the right at any time to dissolve, wind-up or terminate
MVBI Capital subject to the Company having received prior approval of the
Federal Reserve to do so if then required under applicable capital guidelines
or policies of the Federal Reserve. In the event of the voluntary or
involuntary dissolution, winding up or termination of MVBI Capital, after
satisfaction of liabilities to creditors of MVBI Capital as required by
applicable law, the holders of Preferred Securities will be entitled to receive
a Liquidation Amount of $25 per Preferred Security, plus accumulated and unpaid
Distributions thereon to the date of payment, which may be in the form of a
Subordinated Debenture having an aggregate principal amount equal to the
Liquidation Amount of such Preferred Securities (and carrying with it
accumulated interest in an amount equal to the accumulated and unpaid
Distributions then due on such Preferred Securities), subject to certain
exceptions. See "Description of the Preferred Securities--Redemption or
Exchange" and "--Liquidation Distribution Upon Termination."
--------------------------------
The Company will provide to the holders of the Preferred Securities
quarterly reports containing unaudited financial statements, if such reports
are furnished to the holders of the Company's Common Stock, and annual reports
containing financial statements audited by the Company's independent auditors.
--------------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE PREFERRED
SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
<PAGE> 5
MISSISSIPPI VALLEY BANCSHARES, INC.
PARENT COMPANY OF
SOUTHWEST BANK
ST. LOUIS AREA
[MAP]
* PRESENT SOUTHWEST BANK
LOCATIONS
O PROPOSED SOUTHWEST BANK
LOCATIONS PENDING
REGULATORY APPROVAL
<PAGE> 6
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere (or incorporated by reference) in this
Prospectus. Unless otherwise indicated, the information in this Prospectus
assumes that the Underwriter's over-allotment option will not be exercised.
Prospective investors should carefully consider the information set forth under
the heading "Risk Factors."
THE COMPANY
The Company is a one-bank holding company headquartered in St. Louis
County, Missouri engaged primarily in commercial lending through Southwest Bank
of St. Louis (the "Bank"). The Bank has been nationally recognized for its
frequent practice of reducing its prime rate in advance of industry wide prime
rate cuts. The Bank has five banking offices, all of which are located in the
St. Louis metropolitan statistical area (the "St. Louis MSA"), the
seventeenth largest metropolitan area in the United States, with a population
of approximately 2.5 million. Since acquiring the Bank in 1984, the Company has
expanded the Bank's loan portfolio from $57 million to $731 million at December
31, 1996, or approximately $56 million per year. The Company has earned an
average return on equity of 17.21% over the past five years. The principal
executive office of the Company is 700 Corporate Park Drive, St. Louis,
Missouri 63105, and its telephone number is (314) 268-2580.
FINANCIAL SUMMARY
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Net income............................................... $ 14,096 $ 10,747 $ 8,632 $ 6,347 $ 4,719
Earnings per share (fully diluted)....................... 2.92 2.24 1.81 1.53 1.38
Assets (at period end)................................... 1,065,777 995,048 772,015 653,518 578,687
Deposits (at period end)................................. 918,012 886,565 658,956 546,445 518,855
Shareholders' equity..................................... 75,949 70,107 54,750 49,037 30,138
Return on average total assets........................... 1.40% 1.22% 1.21% 1.05% .88%
Return on average total equity........................... 19.07% 17.34% 16.61% 16.18% 16.85%
</TABLE>
The Company's strategy is to act primarily as a lender to middle market
companies located within 200 miles of St. Louis. These companies tend to be
privately-held and owner-operated, with annual sales of less than $100 million
and with typical borrowing requirements of $500,000 to $3 million.
Management believes that the Company is able to compete effectively in its
market because (i) the Bank's lending officers and senior management maintain
close working relationships with their commercial customers and their
businesses, (ii) the Bank is able to react more quickly to loan requests than
the Company's large competitors yet is able to fund loan amounts which smaller
St. Louis area commercial lenders are unable to fund, (iii) the Bank's
management and loan officers have significant experience within the St. Louis
community, and (iv) industry consolidation has resulted in fewer independent
banks and fewer banks addressing the Bank's target market niche.
The Bank's historical growth strategy has been asset driven, as the Bank
has increased its loan portfolio based on lending opportunities which meet the
Bank's underwriting standards. The Bank has expanded its retail deposit base to
meet lending growth demands through opening new locations and offering
promotional deposit rates, often concurrently. These deposit promotional
activities are usually implemented as the Bank's loan-to-deposit ratio
increases significantly past the 85% level which management targets. The Bank
opened one new location in each of 1990, 1992 and 1995. The Bank is currently
seeking regulatory approval to establish a new banking office in Belleville,
Illinois, which is located in the St. Louis MSA and has acquired land for a new
banking office in West St. Louis County, Missouri; the Belleville office would
be the Bank's first location outside of Missouri. It is anticipated that, if
regulatory approval is obtained, construction will begin on the Belleville
office in the Spring of 1997 and the Bank will occupy and commence operating in
this location in late 1997 or early 1998.
The Company's operating strategy has resulted in a higher cost of funds
(and, consequently, a lower net interest margin) than experienced by other
institutions within its market, due to its rate driven retail deposit gathering
activities. For 1996 and 1995, the Company reported net interest margins of
4.01% and 3.80%, respectively.
On the other hand, this operating strategy has permitted the Company to
achieve consistently lower overhead ratios than other comparable institutions
by (i) operating a small number of offices with a per-office deposit base
averaging $184 million as of December 31, 1996, (ii) emphasizing commercial
loans, which tend to be larger in size
2
<PAGE> 7
than retail loans, (iii) employing an experienced staff, (iv) improving data
processing and operational systems in order to increase productivity, and (v)
outsourcing services where possible. For 1996 and 1995, the Company reported
efficiency ratios (non-interest expense divided by the sum of tax-equivalent
net interest income plus non-interest income) of 41.25% and 45.06%,
respectively. These ratios are significantly better than those of the Company's
peers. The Company's average assets per employee, which was $4.74 million for
1996, has also been consistently better than the industry average.
Mr. Andrew N. Baur, Chairman and Chief Executive Officer of the Company,
and Mr. Linn H. Bealke, President of the Company, control approximately 15.4%
of the capital stock of the Company as of December 31, 1996, and the Board of
Directors and executive officers as a group own approximately 33.8% of the
capital stock of the Company as of December 31, 1996.
MVBI CAPITAL
MVBI Capital is a statutory business trust formed under Delaware law
pursuant to (i) a trust agreement, dated as of February 14, 1997, executed by
the Company, as depositor, and the trustees of MVBI Capital (together with the
Property Trustee, the "Trustees"), and (ii) a certificate of trust filed with
the Secretary of State of the State of Delaware on February 14, 1997. The
initial trust agreement will be amended and restated in its entirety (as so
amended and restated, the "Trust Agreement") substantially in the form filed
as an exhibit to the Registration Statement (as defined herein) of which this
Prospectus forms a part. The Trust Agreement will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Upon issuance of the Preferred Securities, the purchasers thereof will
own all of the Preferred Securities. The Company will acquire all of the Common
Securities which will represent an aggregate liquidation amount equal to at
least 3% of the total capital of MVBI Capital. The Common Securities will rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and during the continuance of an
Event of Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities." MVBI Capital exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of MVBI Capital, (ii) investing the gross
proceeds of the Trust Securities in the Subordinated Debentures issued by the
Company, and (iii) engaging in only those other activities necessary,
advisable, or incidental thereto. The Subordinated Debentures and payments
thereunder will be the only assets of MVBI Capital and payments under the
Subordinated Debentures will be the only revenue of MVBI Capital. MVBI Capital
has a term of 55 years, but may terminate earlier as provided in the Trust
Agreement. The principal executive office of MVBI Capital is 700 Corporate Park
Drive, St. Louis, Missouri 63105, and its telephone number is (314) 268-2580.
The number of Trustees will, pursuant to the Trust Agreement, initially be
five. Three of the Trustees (the "Administrative Trustees") will be persons
who are employees or officers of, or who are affiliated with, the Company. The
fourth trustee will be a financial institution that is unaffiliated with the
Company, which trustee will serve as institutional trustee under the Trust
Agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act (the "Property Trustee"). State Street
Bank and Trust Company, a state chartered trust company organized under the
laws of the Commonwealth of Massachusetts, will be the Property Trustee until
removed or replaced by the holder of the Common Securities. For purposes of
compliance with the provisions of the Trust Indenture Act, State Street Bank
and Trust Company will also act as trustee (the "Guarantee Trustee") under
the Guarantee and as Debenture Trustee (as defined herein) under the Indenture.
The fifth trustee will be an entity that maintains its principal place of
business in the State of Delaware (the "Delaware Trustee"). Wilmington Trust
Company, a Delaware chartered trust company, will act as Delaware Trustee.
The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and in such capacity will have
the power to exercise all rights, powers and privileges under the Indenture.
The Property Trustee will also maintain exclusive control of a segregated
non-interest-bearing bank account (the "Property Account") to hold all
payments made in respect of the Subordinated Debentures for the benefit of the
holders of the Trust Securities. The Property Trustee will make payments of
Distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities out of funds from the Property Account. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of the
Preferred Securities. The Company, as the holder of all the Common Securities,
will have the right to appoint, remove or replace any Trustee
3
<PAGE> 8
and to increase or decrease the number of Trustees. The Company will pay all
fees and expenses related to MVBI Capital and the offering of the Trust
Securities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the Trust
Agreement, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
THE OFFERING
<TABLE>
<S> <C>
Securities Offered............ 520,000 Preferred Securities having a Liquidation Amount of $25 per
Preferred Security. The Preferred Securities represent preferred undivided
beneficial interests in the assets of MVBI Capital, which will consist
solely of the Subordinated Debentures and payments thereunder. MVBI Capital
has granted the Underwriter an option, exercisable within 30 days after the
date of this Prospectus, to purchase up to an additional 78,000 Preferred
Securities at the initial offering price, solely to cover over-allotments,
if any.
Distributions................. The Distributions payable on each Preferred Security will float at the
Distribution Rate applied to the Liquidation Amount of $25 per Preferred
Security, will be cumulative, will accrue from , 1997, the date
of issuance of the Preferred Securities, and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of each year,
commencing June 30, 1997. The Distribution Rate is equal to 3-Month
Treasury (determined as provided herein) plus %. See "Description of
the Preferred Securities--Distributions--
Payment of Distributions" and "--Determination of 3-Month Treasury."
Option to Extend Interest
Payment Period.............. The Company has the right, at any time, so long as no Debenture Event of
Default has occurred and is continuing, to defer payments of interest on
the Subordinated Debentures for a period not exceeding 20 consecutive
quarters; provided, that no Extended Interest Payment Period may extend
beyond the Stated Maturity of the Subordinated Debentures. As a consequence
of the extension by the Company of the interest payment period, quarterly
Distributions on the Preferred Securities will be deferred (though such
Distributions would continue to accrue with interest thereon compounded
quarterly, since interest will continue to accrue and compound on the
Subordinated Debentures) during any such Extended Interest Payment Period.
During an Extended Interest Payment Period, the Company will be prohibited,
subject to certain exceptions described herein, from declaring or paying
any cash distributions with respect to its capital stock or debt securities
that rank pari passu with or junior to the Subordinated Debentures. Upon
the termination of any Extended Interest Payment Period and the payment of
all amounts then due, the Company may commence a new Extended Interest
Payment Period, subject to the foregoing requirements. See "Description of
the Preferred Securities--Distributions--Extension Period" and
"Description of the Subordinated Debentures--Option to Extend Interest
Payment Period."
Should an Extended Interest Payment Period occur, holders of Preferred
Securities will be required to include deferred interest income in their
gross income for United States federal income tax purposes in advance of
receipt of the cash distributions with respect to such deferred interest
payments. See "Certain Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original Issue Discount."
4
<PAGE> 9
Optional Redemption........... The Preferred Securities are subject to mandatory redemption, in whole or
in part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to Federal Reserve approval, if then required
under applicable capital guidelines or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior to maturity at the option of
the Company (i) on or after March 31, 2002, in whole at any time or in part
from time to time, or (ii) at any time, in whole (but not in part), within
180 days following the occurrence of a Tax Event, a Capital Treatment Event
or an Investment Company Event, in each case at the redemption price equal
to 100% of the principal amount of the Subordinated Debenture, together
with any accrued but unpaid interest to the date fixed for redemption. See
"Description of the Subordinated Debentures--Redemption or Exchange."
Distribution of Subordinated
Debentures.................. The Company has the right at any time to terminate the Preferred Securities
and cause the Subordinated Debentures to be distributed to holders of
Preferred Securities in liquidation of MVBI Capital, subject to the Company
having received prior approval of the Federal Reserve to do so if then
required under applicable capital guidelines or policies of the Federal
Reserve. See "Description of the Preferred Securities--Redemption or
Exchange" and "Description of the Preferred Securities--Liquidation
Distribution Upon Termination."
Guarantee..................... The Company has guaranteed the payment of Distributions and payments on
liquidation or redemption of the Preferred Securities, but only in each
case to the extent of funds held by MVBI Capital, as described herein. The
Company and MVBI Capital believe that, taken together, the obligations of
the Company under the Guarantee, the Trust Agreement, the Subordinated
Debentures, the Indenture and the Expense Agreement provide, in the
aggregate, a full, irrevocable and unconditional guaranty, on a
subordinated basis, of all of the obligations of MVBI Capital under the
Preferred Securities. The obligations of the Company under the Guarantee
and the Preferred Securities are subordinate and junior in right of payment
to all Senior Debt, Subordinated Debt and Additional Senior Obligations of
the Company. If the Company does not make principal or interest payments on
the Subordinated Debentures, MVBI Capital will not have sufficient funds to
make distributions on the Preferred Securities; in which event, the
Guarantee will not apply to such Distributions until MVBI Capital has
sufficient funds available therefor. See "Description of the Guarantee."
Voting Rights................. The holders of the Preferred Securities generally will have no voting
rights except in limited circumstances. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreement."
Use of Proceeds............... The proceeds from the sale of the Preferred Securities offered hereby will
be used by MVBI Capital to purchase the Subordinated Debentures issued by
the Company. The Company intends to use the net proceeds from the sale of
the Subordinated Debentures for general corporate purposes, including
possible repurchase of outstanding shares of the Company's common stock,
and will invest the net proceeds in investment securities pending its use
for such purposes. See "Use of Proceeds."
Nasdaq National Market
Symbol...................... Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol
"MVBIP."
</TABLE>
5
<PAGE> 10
<TABLE>
SELECTED CONSOLIDATED FINANCIAL DATA
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Interest income......... $ 79,719 $ 70,402 $ 53,036 $ 42,756 $ 41,244
Interest expense........ 40,811 38,295 23,883 19,428 20,714
---------- ---------- ---------- ---------- ----------
Net interest income..... 38,908 32,107 29,153 23,328 20,530
Provision for possible
loan losses........... 3,875 2,560 2,680 2,570 3,155
---------- ---------- ---------- ---------- ----------
Net interest income
after provision for
possible loan
losses................ 35,033 29,547 26,473 20,758 17,375
Noninterest income...... 5,061 4,095 2,736 2,735 2,824
Noninterest expense..... 18,242 16,438 14,993 13,502 12,844
---------- ---------- ---------- ---------- ----------
Income before provision
for income taxes...... 21,852 17,204 14,216 9,991 7,355
Provision for income
taxes................. 7,756 6,457 5,584 3,644 2,636
---------- ---------- ---------- ---------- ----------
Net income.............. $ 14,096 $ 10,747 $ 8,632 $ 6,347 $ 4,719
========== ========== ========== ========== ==========
DIVIDENDS
Preferred stock......... $ 231 $ 231 $ 231 $ 173 $ --
Common stock............ 2,121 1,514 1,192 885 558
Ratio of total dividends
declared to net
income................ 16.69% 16.24% 16.49% 16.67% 11.82%
PER SHARE DATA<F1>
Earnings per common
share:
Primary.............. $ 3.04 $ 2.35 $ 1.91 $ 1.63 $ 1.42
Fully diluted........ 2.92 2.24 1.81 1.53 1.38
Common stock cash
dividends............. 0.47 0.34 0.2725 0.2325 0.17
Average common shares
and common share
equivalents
outstanding........... 4,561,105 4,468,986 4,389,324 3,797,360 3,333,148
Fully-diluted book value
(period end).......... $ 16.90 $ 14.93 $ 11.73 $ 10.55 $ 8.95
BALANCE SHEET DATA (AT
PERIOD END)
Investment securities... $ 287,651 $ 327,652 $ 176,674 $ 130,362 $ 110,367
Loans, net of unearned
discount.............. 731,019 623,777 563,477 498,650 441,018
Total assets............ 1,065,777 995,048 772,015 653,518 578,687
Total deposits.......... 918,012 886,565 658,956 546,445 518,855
Total long-term debt.... 2,700 2,700 3,240 3,240 12,932
Common shareholders'
equity................ 75,949 67,607 52,250 46,537 30,138
Total shareholders'
equity................ 75,949 70,107 54,750 49,037 30,138
SELECTED RATIOS
Return on average total
assets................ 1.40% 1.22% 1.21% 1.05% .88%
Return on average total
shareholders'
equity................ 19.07% 17.34% 16.61% 16.18% 16.85%
Net interest margin..... 4.01 3.80 4.26 4.06 4.03
Efficiency ratio<F2>.... 41.25 45.06 46.59 51.16 54.19
Average assets per
employee.............. $ 4,740 4,426 3,938 3,486 3,315
ASSET QUALITY RATIOS
Allowance for possible
loan losses to
loans................. 1.73% 1.73% 1.70% 1.56% 1.48%
Nonperforming loans to
loans<F3>............. .92 .75 .39 .88 1.34
Allowance for possible
loan losses to
nonperforming
loans<F3>............. 188.14 230.14 440.64 176.67 111.09
Nonperforming assets to
loans and foreclosed
assets<F4>............ .99 .75 .40 .92 1.51
Net loan charge-offs to
average loans......... .30 .23 .16 .29 .38
CAPITAL RATIOS
Average shareholders'
equity to average
assets................ 7.32% 7.03% 7.29% 6.50% 5.22%
Total risk-based capital
ratio................. 11.45 11.64 11.45 11.21 8.77
Leverage ratio.......... 7.20 6.70 7.33 7.40 5.07
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES
AND PREFERRED STOCK
DIVIDENDS<F5>
Including interest on
deposits.............. 1.52x 1.44x 1.57x 1.49x 1.35x
Excluding interest on
deposits.............. 7.98 5.48 6.79 6.34 4.56
<FN>
- ---------
<F1>All Share and per Share information has been restated to reflect the 1993
four-for-one stock split in the form of a stock dividend.
<F2>The efficiency ratio = noninterest expense (tax-equivalent net interest
income + noninterest income)
<F3>Nonperforming loans consist of nonaccrual loans, loans contractually past
due 90 days or more and loans with restructured terms.
<F4>Nonperforming assets consist of nonperforming loans and foreclosed assets.
<F5>For purposes of calculating the ratio of earnings to combined fixed charges
and preferred stock dividends, earnings consist of income before taxes plus
interest and rent expense. Fixed charges consist of interest and rent
expense.
</TABLE>
6
<PAGE> 11
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors before purchasing the Preferred Securities offered
hereby. Prospective investors should note, in particular, that this Prospectus
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
that actual results could differ materially from those contemplated by such
statements. These considerations are not intended to represent a complete list
of the general or specific risks that may affect the Preferred Securities, the
Subordinated Debentures or the Company and MVBI Capital. It should be
recognized that other risks may be significant, presently or in the future, and
the risks set forth below may affect the Preferred Securities, the Subordinated
Debentures or the Company and MVBI Capital to a greater extent than indicated.
Prospective investors are referred to the factors discussed under
"Business--Forward Looking Statements" set forth in the Company's annual
report on Form 10-K for the year ended December 31, 1996 which is incorporated
into this Prospectus by reference. See "Incorporation of Certain Documents by
Reference."
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED
DEBENTURES
The obligations of the Company under the Guarantee issued for the benefit
of the holders of Preferred Securities and under the Subordinated Debentures
are unsecured and rank subordinate and junior in right of payment to all Senior
Debt, Subordinated Debt and Additional Senior Obligations of the Company. At
December 31, 1996, the aggregate outstanding Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company was approximately $2.7 million.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of the Bank upon the Bank's
liquidation or reorganization or otherwise (and thus the ability of holders of
the Preferred Securities to benefit indirectly from such distribution) is
subject to the prior claims of creditors of the Bank, except to the extent that
the Company may itself be recognized as a creditor of the Bank. The
Subordinated Debentures, therefore, will be effectively subordinated to all
existing and future liabilities of the Bank and holders of Subordinated
Debentures and Preferred Securities should look only to the assets of the
Company for payments on the Subordinated Debentures. At December 31, 1996, the
total liabilities of the Bank aggregated $987 million. Neither the Indenture,
the Guarantee nor the Trust Agreement places any limitation on the amount of
secured or unsecured debt, including Senior Debt, Subordinated Debt and
Additional Senior Obligations, that may be incurred by the Company. See
"Description of the Guarantee--Status of the Guarantee" and "Description of
the Subordinated Debentures--Subordination."
The ability of MVBI Capital to pay amounts due on the Preferred Securities
is solely dependent upon the Company making payments on the Subordinated
Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
The Company has the right under the Indenture, so long as no Debenture
Event of Default has occurred and is continuing, to defer the payment of
interest on the Subordinated Debentures at any time or from time to time for a
period not exceeding 20 consecutive quarters with respect to each Extended
Interest Payment Period; provided that no Extended Interest Payment Period may
extend beyond the Stated Maturity of the Subordinated Debentures. As a
consequence of any such deferral, quarterly Distributions on the Preferred
Securities by MVBI Capital will be deferred (and the amount of Distributions to
which holders of the Preferred Securities are entitled will accumulate
additional Distributions thereon at the Distribution Rate, compounded quarterly
from the relevant payment date for such Distributions) during any such Extended
Interest Payment Period. During any such Extended Interest Payment Period, the
Company may not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company's capital stock (other than the reclassification of any class of
the Company's capital stock into another class of capital stock), (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company that rank pari passu with or junior
in interest to the Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Subordinated Debentures (other than payments under the
Guarantee), or (iii) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Securities. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further defer the payment of interest; provided that no Extended Interest
Payment Period may exceed 20 consecutive quarters or extend beyond the Stated
Maturity of
7
<PAGE> 12
the Subordinated Debentures. Upon the termination of any Extended Interest
Payment Period and the payment of all interest then accrued and unpaid
(together with interest thereon at the Distribution Rate compounded quarterly,
to the extent permitted by applicable law), the Company may elect to begin a
new Extended Interest Payment Period, subject to the above requirements.
Subject to the foregoing, there is no limitation on the number of times that
the Company may elect to begin an Extended Interest Payment Period. See
"Description of the Preferred Securities--
Distributions--Extension Period" and "Description of the Subordinated
Debentures--Option to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur, each holder of Preferred
Securities will be required to accrue and recognize income (in the form of
original issue discount) in respect of its pro rata share of the interest
accruing on the Subordinated Debentures held by MVBI Capital for United States
federal income tax purposes. A holder of Preferred Securities must, as a
result, include such income in gross income for United States federal income
tax purposes in advance of the receipt of cash, and will not receive the cash
related to such income from MVBI Capital if the holder disposes of the
Preferred Securities prior to the record date for the payment of the related
Distributions. See "Certain Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures. Should the Company elect, however, to exercise such
right in the future, the market price of the Preferred Securities is likely to
be adversely affected. A holder that disposes of its Preferred Securities
during an Extended Interest Payment Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Preferred
Securities. As a result of the existence of the Company's right to defer
interest payments, the market price of the Preferred Securities may be more
volatile than the market prices of other securities on which original issue
discount accrues that are not subject to such optional deferrals.
TAX EVENT, CAPITAL TREATMENT EVENT OR INVESTMENT COMPANY EVENT; REDEMPTION
The Company has the right to redeem the Subordinated Debentures in whole
(but not in part) within 180 days following the occurrence of a Tax Event,
Capital Treatment Event or Investment Company Event (whether occurring before
or after March 31, 2002), and, therefore, cause a mandatory redemption of the
Preferred Securities. The exercise of such right is subject to the Company
having received prior approval of the Federal Reserve to do so if then required
under applicable capital guidelines or policies of the Federal Reserve.
"Tax Event" means the receipt by MVBI Capital of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) MVBI Capital 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 Subordinated Debentures, (ii) interest
payable by the Company on the Subordinated Debentures is not, or, within 90
days of such opinion, will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (iii) MVBI Capital is,
or will be within 90 days of the date of the opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges. The
Company must request and receive an opinion with regard to such matters within
a reasonable period of time after it becomes aware of the possible occurrence
of any of the events described in clauses (i) through (iii) above.
"Capital Treatment Event" means the receipt by MVBI Capital of an opinion
of counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision 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 such proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the
aggregate liquidation amount of the Preferred Securities (or any substantial
portion thereof) as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company.
8
<PAGE> 13
"Investment Company Event" means the receipt by MVBI Capital of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, MVBI Capital is or will be
considered an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), which change becomes effective on or after the date of original
issuance of the Preferred Securities.
See "--Proposed Tax Legislation" for a discussion of certain legislative
proposals that, if adopted, could give rise to a Tax Event, which may permit
the Company to cause a redemption of the Preferred Securities prior to March
31, 2002.
SHORTENING OR EXTENSION OF STATED MATURITY OF SUBORDINATED DEBENTURES
The Company has the right, at any time, to shorten the maturity of the
Subordinated Debentures to a date not earlier than March 31, 2002. The exercise
of such right is subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. The Company also has the right to extend the
maturity of the Subordinated Debentures (whether or not MVBI Capital is
terminated and the Subordinated Debentures are distributed to holders of the
Preferred Securities) to a date no later than March 31, 2036, the 39th
anniversary of the initial issuance of the Preferred Securities. Such right may
only be exercised, however, if at the time such election is made and at the
time of such extension (i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Company is not in default in the payment
of any interest or principal on the Subordinated Debentures, (iii) MVBI Capital
is not in arrears on payments of Distributions on the Preferred Securities and
no deferred Distributions are accumulated, and (iv) the Company has a Senior
Debt rating of investment grade. See "Description of the Subordinated
Debentures--General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Preferred Securities, to the
extent not paid by MVBI Capital, (i) any accrued and unpaid Distributions
required to be paid on the Preferred Securities, to the extent that MVBI
Capital has funds available therefor at such time, (ii) the Redemption Price
(as defined herein) with respect to any Preferred Securities called for
redemption, to the extent that MVBI Capital has funds available therefor at
such time, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of MVBI Capital (other than in connection with the distribution of
Subordinated Debentures to the holders of Preferred Securities or a redemption
of all of the Preferred Securities), the lesser of (a) the amount of the
Liquidation Distribution (as defined herein), to the extent MVBI Capital has
funds available therefor at such time, and (b) the amount of assets of MVBI
Capital remaining available for distribution to holders of the Preferred
Securities in liquidation of MVBI Capital. The holders of not less than a
majority in Liquidation Amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of the Guarantee or to direct the
exercise of any trust power conferred upon the Guarantee Trustee under the
Guarantee. Any holder of the Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against MVBI Capital,
the Guarantee Trustee or any other Person (as defined in the Guarantee). If the
Company were to default on its obligation to pay amounts payable under the
Subordinated Debentures, MVBI Capital would lack funds for the payment of
Distributions or amounts payable on redemption of the Preferred Securities or
otherwise, and, in such event, holders of Preferred Securities would not be
able to rely upon the Guarantee for such amounts. In the event, however, that a
Debenture Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest on or principal of
the Subordinated Debentures on the payment date on which such payment is due
and payable, then a holder of Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such Subordinated Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such holder (a "Direct Action"). The exercise by the Company of
its right, as described herein, to defer the payment of interest on the
Subordinated Debentures does not constitute a Debenture Event of Default. In
connection with such Direct Action, the Company will have a right of set-off
under the Indenture to the extent of any payment made by the Company to such
holder of Preferred Securities in the Direct Action. Except as described
herein, holders of Preferred Securities will not be able to exercise directly
any other remedy available to the holders of the Subordinated Debentures or
assert directly any other rights in respect of
9
<PAGE> 14
the Subordinated Debentures. See "Description of the Subordinated
Debentures--Enforcement of Certain Rights by Holders of the Preferred
Securities," "Description of the Subordinated Debentures--Debenture Events of
Default" and "Description of the Guarantee." The Trust Agreement provides
that each holder of Preferred Securities by acceptance thereof agrees to the
provisions of the Guarantee and the Indenture.
NO VOTING RIGHTS EXCEPT IN LIMITED CIRCUMSTANCES
Holders of Preferred Securities will have no voting rights except in
limited circumstances relating only to the modification of the Preferred
Securities and the exercise of the rights of MVBI Capital as holder of the
Subordinated Debentures and the Guarantee. Holders of Preferred Securities will
not be entitled to vote to appoint, remove or replace the Property Trustee or
the Delaware Trustee, as such voting rights are vested exclusively in the
holder of the Common Securities (except upon the occurrence of certain events
described herein). The Property Trustee, the Administrative Trustees and the
Company may amend the Trust Agreement without the consent of holders of
Preferred Securities to ensure that MVBI Capital will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of the
Preferred Securities--Voting Rights; Amendment of Trust Agreement" and
"Description of the Preferred Securities--Removal of MVBI Capital Trustees."
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations issued on or after December 7,
1995 (the "1996 Proposed Legislation") if such debt obligations have a maximum
term in excess of 20 years and are not shown as indebtedness on the issuer's
applicable consolidated balance sheet. On March 29, 1996, Senate Finance
Committee Chairman William V. Roth, Jr. and House Ways and Means Committee
Chairman Bill Archer issued a joint statement (the "Joint Statement")
indicating their intent that certain legislative proposals initiated by the
Clinton administration, including the Proposed Legislation, that may be adopted
by either of the tax-writing committees of Congress would have an effective
date that is no earlier than the date of "appropriate Congressional action."
In addition, subsequent to the publication of the Joint Statement, Senator
Daniel Patrick Moynihan and Representatives Sam M. Gibbons and Charles B.
Rangel wrote letters to Treasury Department officials concurring with the views
expressed in the Joint Statement (the "Democrat Letters"). Based upon the
Joint Statement and the Democrat Letters, it is expected that if the 1996
Proposed Legislation were to be enacted, such legislation would not apply to the
Subordinated Debentures. There can be no assurances, however, that the
effective date guidance contained in the Joint Statement and the Democrat
Letters will be incorporated into the 1996 Proposed Legislation, if enacted. On
February 6, 1997, President Clinton proposed in the administration's fiscal
year 1998 budget certain tax law changes (the "1997 Proposed Legislation") that
would, among other things, generally deny corporate issuers a deduction for
interest or original issue discount ("OID") in respect of certain debt
obligations if such debt obligations have a maximum term in excess of 15 years
and are not shown as indebtedness on the issuer's applicable consolidated
balance sheet. The proposed budget also contains a provision that would deny a
deduction to corporate issuers for interest or OID with respect to debt
instruments that have a maximum term of more than 40 years (including rights to
extend, renew or relend), or are payable in stock of the issuer or a related
party. The U.S. Treasury Department's summary of the 1997 Proposed Legislation
states that the above provisions regarding the deduction of interest would
generally be effective for instruments issued on or after the date of first
Congressional committee action with respect to the 1997 Proposed Legislation.
The Ways and Means Committee began a full committee hearing on the President's
fiscal 1998 budget on February 11, 1997. There can be no assurance that the
effective date guidance in the administration's proposal will be adopted if the
proposed change to the tax law is enacted, or that other legislation enacted
after the date hereof will not otherwise adversely affect the ability of the
Company to deduct the interest payable on the Subordinated Debentures.
Consequently, there can be no assurance that a Tax Event will not occur. A Tax
Event would permit the Company, upon approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve,
to cause a redemption of the Preferred Securities before, as well as after,
March 31, 2002. See "Description of the Subordinated Debentures--Redemption or
Exchange--Tax Event Redemption, Capital Treatment Event Redemption or
Investment Company Event Redemption" and "Certain Federal Income Tax
Consequences--Effect of Proposed Changes in Tax Laws."
10
<PAGE> 15
REDEMPTION; EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES
The Company has the right at any time to dissolve, wind-up or terminate
MVBI Capital and cause the Subordinated Debentures to be distributed to the
holders of the Preferred Securities in exchange therefor in liquidation of MVBI
Capital. The exercise of such right is subject to the Company having received
prior approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. The Company will have the right,
in certain circumstances, to redeem the Subordinated Debentures in whole or in
part, in lieu of a distribution of the Subordinated Debentures by MVBI Capital,
in which event MVBI Capital will redeem the Trust Securities on a pro rata
basis to the same extent as the Subordinated Debentures are redeemed by the
Company. Any such distribution or redemption prior to the Stated Maturity will
be subject to prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. See
"Description of the Preferred Securities--Redemption or Exchange--Tax Event
Redemption, Capital Treatment Event Redemption or Investment Company Event
Redemption."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of MVBI Capital would not be a
taxable event to holders of the Preferred Securities. If, however, MVBI Capital
is characterized as an association taxable as a corporation at the time of the
dissolution of MVBI Capital, the distribution of the Subordinated Debentures
may constitute a taxable event to holders of Preferred Securities. Moreover,
upon occurrence of a Tax Event, a dissolution of MVBI Capital in which holders
of the Preferred Securities receive cash may be a taxable event to such
holders. See "Certain Federal Income Tax Consequences--Receipt of Subordinated
Debentures or Cash Upon Liquidation of MVBI Capital."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities upon a dissolution or liquidation of MVBI Capital. The
Preferred Securities or the Subordinated Debentures, may, therefore, trade at a
discount to the price that the investor paid to purchase the Preferred
Securities offered hereby. Because holders of Preferred Securities may receive
Subordinated Debentures, prospective purchasers of Preferred Securities are
also making an investment decision with regard to the Subordinated Debentures
and should carefully review all the information regarding the Subordinated
Debentures contained herein.
If the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of MVBI Capital, the Company will use its best
efforts to list the Subordinated Debentures on The Nasdaq Stock Market's
National Market or such stock exchanges, if any, on which the Preferred
Securities are then listed.
TRADING PRICE; ABSENCE OF PRIOR PUBLIC MARKET FOR THE PREFERRED SECURITIES
The Preferred Securities may trade at prices that do not fully reflect the
value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder of Preferred Securities that disposes of its
Preferred Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from MVBI Capital for the period
prior to such disposition) will nevertheless be required to include accrued but
unpaid interest on the Subordinated Debentures through the date of disposition
in income as ordinary income and to add such amount to its adjusted tax basis
in its pro rata share of the underlying Subordinated Debentures deemed disposed
of. Such holder will recognize a capital loss to the extent the selling price
(which may not fully reflect the value of accrued but unpaid interest) is less
than its adjusted tax basis (which will include all accrued but unpaid
interest). Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes. See "Certain Federal Income Tax Consequences--Disposition of
Preferred Securities."
There is no current public market for the Preferred Securities. Although
application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market, there can be no
assurance that an active public market will develop for the Preferred
Securities or that, if such market develops, the market price will equal or
exceed the public offering price set forth on the cover page of this
Prospectus. The public offering price for the Preferred Securities has been
determined through negotiations between the Company and the Underwriter. Prices
for the Preferred Securities will be determined in the marketplace and may be
influenced by many factors, including prevailing interest rates, the liquidity
of the market for the Preferred Securities, investor perceptions of the Company
and general industry and economic conditions.
11
<PAGE> 16
PREFERRED SECURITIES ARE NOT INSURED
The Preferred Securities are not insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the Federal Deposit Insurance Corporation
or by any other governmental agency.
USE OF PROCEEDS
MVBI Capital will use the gross proceeds received from the sale of the
Preferred Securities to purchase Subordinated Debentures from the Company. The
Company intends to use the net proceeds from the sale of the Subordinated
Debentures for general corporate purposes, including strengthening the
Company's capital base, and positioning the Company to continue to exceed
minimum regulatory capital ratios which will allow for future growth. From time
to time, the Company's Board of Directors considers the advisability of
repurchasing shares of the Company's common stock and, in April 1996,
authorized the Company to repurchase up to 225,545 shares of its common stock
from time to time. While it is possible that a portion of the proceeds will be
used for such repurchases, no such repurchases have been made since such
authorization. The net proceeds from the sale of the Subordinated Debentures
will be invested in investment securities pending its use for the purposes
described above.
MARKET FOR THE PREFERRED SECURITIES
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol MVBIP.
Although Stifel, Nicolaus & Company, Incorporated has informed the Company that
it presently intends to make a market in the Preferred Securities, there can be
no assurance that an active and liquid trading market will develop or, if
developed, that such a market will continue. The offering price and
distribution rate have been determined by negotiations among representatives of
the Company and the Underwriter, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
See "Underwriting."
ACCOUNTING TREATMENT
MVBI Capital will be treated, for financial reporting purposes, as a
subsidiary of the Company and, accordingly, the accounts of MVBI Capital will
be included in the consolidated financial statements of the Company. The
Preferred Securities will be presented as a separate line item in the
consolidated balance sheet of the Company under the caption "Guaranteed
Preferred Beneficial Interests in Company's Subordinated Debentures," and
appropriate disclosures about the Preferred Securities, the Guarantee and the
Subordinated Debentures will be included in the notes to consolidated financial
statements. The Company will record Distributions payable on the Preferred
Securities as an expense in the consolidated statements of operations for
financial reporting purposes.
All future reports of the Company filed under the Exchange Act will (a)
present the Trust Securities issued by MVBI Capital on the balance sheet as a
separate line-item under Long-Term Debt entitled "Guaranteed preferred
beneficial interests in the Company's subordinated debentures," (b) include in
a footnote to the financial statements disclosure that the sole assets of MVBI
Capital are the Subordinated Debentures (including the outstanding principal
amount, interest rate and maturity date of such Subordinated Debentures), and
(c) include in an audited footnote to the financial statements disclosure that
the Company owns all of the Common Securities of MVBI Capital, the sole assets
of MVBI Capital are the Subordinated Debentures, and the back-up obligations,
in the aggregate, constitute a full and unconditional guarantee by the Company
of the obligations of MVBI Capital under the Preferred Securities.
12
<PAGE> 17
CAPITALIZATION
The following table sets forth (i) the consolidated capitalization of the
Company at December 31, 1996 and (ii) the consolidated capitalization of the
Company giving effect to the issuance of the Preferred Securities hereby
offered by MVBI Capital and receipt by the Company of the net proceeds from the
corresponding sale of the Subordinated Debentures to MVBI Capital, as if the
sale of the Preferred Securities had been consummated on December 31, 1996, and
assuming the Underwriter's over-allotment option was not exercised.
<TABLE>
<CAPTION>
DECEMBER 31, 1996
-----------------------
ACTUAL AS ADJUSTED
------ -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
LONG-TERM DEBT:
8% Subordinated Convertible Debentures................................................ $ 2,700 $ 2,700
Guaranteed preferred beneficial interests in the Company's subordinated debentures.... -- 13,000
-------- -------
Total long-term debt.......................................................... $ 2,700 $15,700
-------- -------
Common stock, $1.00 par value; 15,000,000 shares authorized; 4,516,956 shares issued
and outstanding...................................................................... 4,517 4,517
Capital surplus....................................................................... 19,752 19,752
Retained earnings..................................................................... 51,159 51,159
Unrealized gain, net of tax, on available for sale securities......................... 521 521
-------- -------
Total shareholders' equity.................................................... 75,949 75,949
-------- -------
Total capitalization.......................................................... $ 78,649 $91,649
======== =======
CAPITAL RATIOS:
Shareholders' equity to total assets.................................................. 7.13% 7.04%
Leverage ratio<F1><F2><F3>............................................................ 7.20 8.34
Risk-based capital ratios:<F3>
Tier 1 capital to risk-weighted assets............................................ 10.20 11.75
Total risk-based capital to risk-weighted assets.................................. 11.45 12.98
<FN>
- --------
<F1>The leverage ratio is Tier 1 capital divided by average quarterly assets,
after deducting intangible assets and net deferred tax assets in excess of
regulatory maximum limits.
<F2>The capital ratios, as adjusted, are computed including the total estimated
net proceeds from the sale of the Preferred Securities, in a manner
consistent with Federal Reserve guidelines.
<F3>Federal Reserve guidelines for calculation of Tier 1 capital to
risk-weighted assets limits the amount of cumulative preferred stock which
can be included in Tier 1 capital to 25% of total Tier 1 capital.
</TABLE>
13
<PAGE> 18
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the Trust
Agreement. The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act. The Property Trustee, State Street Bank and Trust Company,
will act as indenture trustee for the Preferred Securities under the Trust
Agreement for purposes of complying with the provisions of the Trust Indenture
Act. The terms of the Preferred Securities will include those stated in the
Trust Agreement and those made part of the Trust Agreement by the Trust
Indenture Act. The following summary of the material terms and provisions of
the Preferred Securities and the Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Trust Agreement, the Trust Act, and the Trust Indenture Act. Wherever
particular defined terms of the Trust Agreement are referred to, but not
defined herein, such defined terms are incorporated herein by reference. The
form of the Trust Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
GENERAL
Pursuant to the terms of the Trust Agreement, the Trustees, on behalf of
MVBI Capital, will issue the Trust Securities. All of the Common Securities
will be owned by the Company. The Preferred Securities will represent preferred
undivided beneficial interests in the assets of MVBI Capital and the holders
thereof will be entitled to a preference in certain circumstances with respect
to Distributions and amounts payable on redemption or liquidation over the
Common Securities, as well as other benefits as described in the Trust
Agreement. The Trust Agreement does not permit the issuance by MVBI Capital of
any securities other than the Trust Securities or the incurrence of any
indebtedness by MVBI Capital.
The Preferred Securities will rank pari passu, and payments will be made
thereon pro rata, with the Common Securities, except as described under
"--Subordination of Common Securities." Legal title to the Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of the
holders of the Trust Securities. The Guarantee executed by the Company for the
benefit of the holders of the Preferred Securities will be a guarantee on a
subordinated basis with respect to the Preferred Securities, but will not
guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when MVBI Capital does not have funds
on hand available to make such payments. State Street Bank and Trust Company,
as Guarantee Trustee, will hold the Guarantee for the benefit of the holders of
the Preferred Securities. See "Description of the Guarantee."
DISTRIBUTIONS
PAYMENT OF DISTRIBUTIONS. Distributions on each Preferred Security will be
payable at the Distribution Rate applied to the stated Liquidation Amount of
$25, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, to the holders of the Preferred Securities on the
relevant record dates (each date on which Distributions are payable in
accordance with the foregoing, a "Distribution Date"). The record date will
be the 15th day of the month in which the relevant Distribution Date occurs.
Distributions will accumulate from the date of original issuance. The first
Distribution Date for the Preferred Securities will be June 30, 1997. The
amount of Distributions payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any additional
Distributions, interest or other payment in respect of any such delay) with the
same force and effect as if made on the date such payment was originally due
and payable. "Business Day" means any day other than a Saturday or a Sunday,
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or a day on which the
corporate trust office of the Property Trustee or the Debenture Trustee is
closed for business.
DETERMINATION OF 3-MONTH TREASURY. The Distribution Rate during any period
beginning on, and including, the date of original issuance, and ending on, but
excluding, the first Distribution Date, and each successive period beginning
on, and including, a Distribution Date, and ending on, but excluding, the next
succeeding Distribution Date (each, a "Distribution Period") in respect of
the Preferred Securities will be a rate per annum determined by reference to
3-Month Treasury, determined as described below, plus %. "3-Month
Treasury" means the yield on United States of America Treasury constant
maturities, adjusted to a constant maturity of three (3)
14
<PAGE> 19
months, reported by the Federal Reserve. 3-Month Treasury, with respect to any
Distribution Period, will be determined by the Debenture Trustee as follows:
(a) On the second Business Day preceding the commencement of such
Distribution Period (each, a "Determination Date"), 3-Month Treasury
will be the current yield for United States of America Treasury Constant
Maturities, adjusted to a constant maturity of three (3) months, which
appears on the applicable Federal Reserve Statistical Release Series H.15
(519) which includes data for such Determination Date, or as then currently
furnished or made available by the Federal Reserve if such Series is no
longer published.
(b) If, on any Determination Date, the Debenture Trustee is required
but unable to determine 3-Month Treasury in the manner provided in
paragraph (a) above, 3-Month Treasury for such Distribution
Period will be 3-Month Treasury as determined on the previous
Determination Date.
The Distribution Rate for any Distribution Period will at no time be higher
than the maximum rate then permitted by Missouri law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in this
Prospectus will be rounded, if necessary, to the nearest multiple of 1/100 of
1% and all dollar amounts used in or resulting from such calculations will be
rounded to the nearest cent (with one-half cent or more being rounded upwards).
DETERMINATION OF DISTRIBUTION RATE AND CALCULATION OF DISTRIBUTION AMOUNT.
The Debenture Trustee will, on each Determination Date, determine the
Distribution Rate and calculate the amount of Distributions payable in respect
of the following Distribution Period (the "Distribution Amount"). The
Distribution Amount will be calculated by applying the Distribution Rate to the
Liquidation Amount of each Preferred Security outstanding at the commencement
of the Distribution Period, multiplying each such amount by the actual number
of days in the Distribution Period concerned (which actual number of days will
include the first day but exclude the last day of such Distribution Period)
divided by 360 and rounding the resultant figure to the nearest cent (with
one-half cent or more being rounded upwards). The determination of the
Distribution Rate and the Distribution Amount by the Debenture Trustee will (in
the absence of willful default, bad faith or manifest error) be final,
conclusive and binding on all concerned.
Upon the request of a holder of a Preferred Security, the Debenture Trustee
will provide the Distribution Rate then in effect and, if determined, the
Distribution Rate for the next Distribution Period with respect to the
Preferred Securities. Each such Distribution Rate may be obtained by
telephoning the Debenture Trustee at (617) 664-5500.
NOTIFICATION OF DISTRIBUTION RATE, DISTRIBUTION AMOUNT AND DISTRIBUTION
DATE. The Debenture Trustee will notify the Property Trustee and any securities
exchange or interdealer quotation system on which the Preferred Securities are
listed, of the Distribution Rate and the Distribution Date for each
Distribution Period, in each case as soon as practicable after the
determination thereof but in no event later than the seventh Business Day of the
relevant Distribution Period. Failure to notify the Property Trustee or any
applicable securities exchange or interdealer quotation system, or any defect
in said notice, shall not affect the obligation of the Company to make payment
on the Debentures at the applicable Distribution Rate. Any error in the
calculation of the Distribution Rate by the Debenture Trustee may be corrected
at any time by notice delivered as above provided.
15
<PAGE> 20
CERTIFICATES TO BE FINAL. All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of Distributions on the Preferred Securities by the Debenture
Trustee will (in the absence of willful default, bad faith or manifest error)
be binding on MVBI Capital, the Company, and all of the holders of the
Preferred Securities, and no liability will (in the absence of willful default,
bad faith or manifest error) attach to the Debenture Trustee or the Property
Trustee in connection with the exercise or non-exercise by either of them of
their respective powers, duties and discretion.
EXTENSION PERIOD. The Company has the right under the Indenture, so long as
no Debenture Event of Default has occurred and is continuing, to defer the
payment of interest on the Subordinated Debentures at any time, or from time to
time (each, an "Extended Interest Payment Period"), which, if exercised,
would defer quarterly Distributions on the Preferred Securities during any such
Extended Interest Payment Period. Distributions to which holders of the
Preferred Securities are entitled will accumulate additional Distributions
thereon at the Distribution Rate, compounded quarterly from the relevant
Distribution Date. "Distributions," as used herein, includes any such
additional Distributions. The right to defer the payment of interest on the
Subordinated Debentures is limited, however, to a period, in each instance, not
exceeding 20 consecutive quarters and no Extended Interest Payment Period may
extend beyond the Stated Maturity of the Subordinated Debentures. During any
such Extended Interest Payment Period, the Company, may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock (other
than the reclassification of any class of the Company's capital stock into
another class of capital stock), (ii) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of
the Company that rank pari passu with or junior in interest to the Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Subordinated
Debentures (other than payments under the Guarantee), or (iii) redeem, purchase
or acquire less than all of the Subordinated Debentures or any of the Preferred
Securities. Prior to the termination of any such Extended Interest Payment
Period, the Company may further defer the payment of interest; provided that
such Extended Interest Payment Period may not exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Subordinated Debentures. Upon the
termination of any such Extended Interest Payment Period and the payment of all
amounts then due, the Company may elect to begin a new Extended Interest
Payment Period, subject to the above requirements. Subject to the foregoing,
there is no limitation on the number of times that the Company may elect to
begin an Extended Interest Payment Period.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures.
SOURCE OF DISTRIBUTIONS. The funds of MVBI Capital available for
distribution to holders of its Preferred Securities will be limited to payments
under the Subordinated Debentures in which MVBI Capital will invest the
proceeds from the issuance and sale of its Trust Securities. See "Description
of the Subordinated Debentures." Distributions will be paid through the
Property Trustee who will hold amounts received in respect of the Subordinated
Debentures in the Property Account for the benefit of the holders of the Trust
Securities. If the Company does not make interest payments on the Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Preferred Securities. The payment of Distributions (if and
to the extent MVBI Capital has funds legally available for the payment of such
Distributions and cash sufficient to make such payments) is guaranteed by the
Company. See "Description of the Guarantee." Distributions on the Preferred
Securities will be payable to the holders thereof as they appear on the
register of holders of the Preferred Securities on the relevant record dates,
which will be the 15th day of the month in which the relevant Distribution Date
occurs.
REDEMPTION OR EXCHANGE
GENERAL. The Subordinated Debentures will mature on March 31, 2027. The
Company will have the right to redeem the Subordinated Debentures (i) on or
after March 31, 2002, in whole at any time or in part from time to time, or
(ii) at any time, in whole (but not in part), within 180 days following the
occurrence of a Tax Event, a Capital Treatment Event or an Investment Company
Event, in each case subject to receipt of prior approval by the Federal Reserve
if then required under applicable capital guidelines or policies of the Federal
Reserve. The Company will not have the right to purchase the Subordinated
Debentures, in whole or in part, from MVBI Capital until after March 31, 2002.
See "Description of the Subordinated Debentures--General."
16
<PAGE> 21
MANDATORY REDEMPTION. Upon the repayment or redemption, in whole or in
part, of any Subordinated Debentures, whether at Stated Maturity or upon
earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption will be applied by the Property Trustee to redeem a
Like Amount (as defined herein) of the Trust Securities, upon not less than 30
nor more than 60 days notice, at a redemption price (the "Redemption Price")
equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated but unpaid Distributions thereon to the date of redemption (the
"Redemption Date"). See "Description of the Subordinated
Debentures--Redemption or Exchange." If less than all of the Subordinated
Debentures are to be repaid or redeemed on a Redemption Date, then the proceeds
from such repayment or redemption will be allocated to the redemption of the
Trust Securities pro rata.
DISTRIBUTION OF SUBORDINATED DEBENTURES. Subject to the Company having
received prior approval of the Federal Reserve if so required under applicable
capital guidelines or policies of the Federal Reserve, the Company will have
the right at any time to dissolve, wind-up or terminate MVBI Capital and, after
satisfaction of the liabilities of creditors of MVBI Capital as provided by
applicable law, cause the Subordinated Debentures to be distributed to the
holders of Trust Securities in liquidation of MVBI Capital. See "--Liquidation
Distribution Upon Termination."
TAX EVENT REDEMPTION, CAPITAL TREATMENT EVENT REDEMPTION OR INVESTMENT
COMPANY EVENT REDEMPTION. If a Tax Event, a Capital Treatment Event or an
Investment Company Event in respect of the Trust Securities occurs and is
continuing, the Company has the right to redeem the Subordinated Debentures in
whole (but not in part) and thereby cause a mandatory redemption of such Trust
Securities in whole (but not in part) at the Redemption Price within 180 days
following the occurrence of such Tax Event, Capital Treatment Event or
Investment Company Event. In the event a Tax Event, a Capital Treatment Event
or an Investment Company Event in respect of the Trust Securities has occurred
and the Company does not elect to redeem the Subordinated Debentures and
thereby cause a mandatory redemption of such Trust Securities or to liquidate
MVBI Capital and cause the Subordinated Debentures to be distributed to holders
of such Trust Securities in liquidation of MVBI Capital as described below
under "--Liquidation Distribution Upon Termination," such Preferred
Securities will remain outstanding and Additional Interest (as defined herein)
may be payable on the Subordinated Debentures.
"Additional Interest" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by MVBI Capital on
the outstanding Trust Securities will not be reduced as a result of any
additional taxes, duties and other governmental charges to which MVBI Capital
has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed in
accordance with the Indenture, which will be used to pay the Redemption Price
of such Trust Securities, and (ii) with respect to a distribution of
Subordinated Debentures to holders of Trust Securities in connection with a
dissolution or liquidation of MVBI Capital, Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
holder to whom such Subordinated Debentures are distributed. Each Subordinated
Debenture distributed pursuant to clause (ii) above will carry with it
accumulated interest in an amount equal to the accumulated and unpaid interest
then due on such Subordinated Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
After the liquidation date fixed for any distribution of Subordinated
Debentures for Preferred Securities (i) such Preferred Securities will no
longer be deemed to be outstanding, and (ii) any certificates representing
Preferred Securities will be deemed to represent the Subordinated Debentures
having a principal amount equal to the Liquidation Amount of such Preferred
Securities, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on the Preferred Securities, until such
certificates are presented to the Administrative Trustees or their agent for
transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of MVBI Capital were
to occur. The Preferred Securities that an investor may purchase, or the
Subordinated Debentures that an investor may receive on dissolution and
liquidation of MVBI Capital, may, therefore, trade at a discount to the price
that the investor paid to purchase the Preferred Securities offered hereby.
17
<PAGE> 22
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date will be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Subordinated Debentures. Redemptions of the Preferred
Securities will be made and the Redemption Price will be payable on each
Redemption Date only to the extent that MVBI Capital has funds on hand
available for the payment of such Redemption Price. See "--Subordination of
Common Securities."
If MVBI Capital gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, eastern standard time, on the Redemption Date,
to the extent funds are available, the Property Trustee will irrevocably
deposit with the paying agent for the Preferred Securities funds sufficient to
pay the aggregate Redemption Price and will give the paying agent for the
Preferred Securities irrevocable instructions and authority to pay the
Redemption Price to the holders thereof upon surrender of their certificates
evidencing such Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Preferred
Securities called for redemption will be payable to the holders of such
Preferred Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption will have been given and funds deposited as
required, then upon the date of such deposit, all rights of the holders of such
Preferred Securities so called for redemption will cease, except the right of
the holders of such Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price, and such Preferred Securities will
cease to be outstanding. In the event that any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any additional Distribution, interest or other
payment in respect of any such delay) with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Preferred Securities called for redemption is improperly withheld or refused
and not paid either by MVBI Capital, or by the Company pursuant to the
Guarantee, Distributions on such Preferred Securities will continue to accrue
at the then applicable rate, from the Redemption Date originally established by
MVBI Capital for such Preferred Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price. See
"Description of the Guarantee."
Subject to applicable law (including, without limitation, United States
federal securities law) and, further provided, that the Company has not and is
not continuing to exercise its right to defer interest payments, the Company or
its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Subordinated Debentures to holders of Preferred Securities will
be made to the applicable recordholders thereof as they appear on the register
for the Preferred Securities on the relevant record date, which date will be
the date 15 days prior to the Redemption Date or liquidation date, as
applicable.
If less than all of the Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust Securities to be
redeemed will be allocated pro rata to the Trust Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed will be selected by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee deems fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25. The Property Trustee will
promptly notify the registrar for the Preferred Securities in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of the Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities will relate to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the redemption price on the Subordinated Debentures, on and after the
Redemption Date interest will cease to accrue on such Subordinated Debentures
or portions thereof (and Distributions will cease to accrue on the related
Preferred Securities or portions thereof) called for redemption.
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SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Preferred
Securities and Common Securities, as applicable, will be made pro rata based on
the Liquidation Amount of the Preferred Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, will be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Preferred
Securities for all Distribution Periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all of the outstanding Preferred Securities then called for
redemption, will have been made or provided for, and all funds available to the
Property Trustee will first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Preferred Securities then due and
payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will be deemed to have
waived any right to act with respect to any such Event of Default under the
Trust Agreement until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise eliminated. Until
any such Events of Default under the Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Preferred
Securities and not on behalf of the Company, as holder of the Common
Securities, and only the holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
The Company will have the right at any time to dissolve, wind-up or
terminate MVBI Capital and cause the Subordinated Debentures to be distributed
to the holders of the Preferred Securities. Such right is subject, however, to
the Company having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve.
Pursuant to the Trust Agreement, MVBI Capital will automatically terminate
upon expiration of its term and will terminate earlier on the first to occur of
(i) certain events of bankruptcy, dissolution or liquidation of the Company,
(ii) the distribution of a Like Amount of the Subordinated Debentures to the
holders of its Trust Securities, if the Company, as depositor, has given
written direction to the Property Trustee to terminate MVBI Capital (which
direction is optional and wholly within the discretion of the Company, as
depositor), (iii) redemption of all of the Preferred Securities as described
under "Description of the Preferred Securities--Redemption or
Exchange--Mandatory Redemption," or (iv) the entry of an order for the
dissolution of MVBI Capital by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv) of
the preceding paragraph, MVBI Capital will be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of MVBI Capital as provided by
applicable law, to the holders of such Trust Securities a Like Amount of the
Subordinated Debentures, unless such distribution is determined by the Property
Trustee not to be practical, in which event such holders will be entitled to
receive out of the assets of MVBI Capital available for distribution to
holders, after satisfaction of liabilities to creditors of MVBI Capital as
provided by applicable law, an amount equal to, in the case of holders of
Preferred Securities, the aggregate of the Liquidation Amount plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid
only in part because MVBI Capital has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by MVBI Capital on the Preferred Securities will be paid on a pro rata basis.
The Company, as the holder of the Common Securities, will be entitled to
receive distributions upon any such liquidation pro rata with the holders of
the Preferred Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities will have a priority over
the Common Securities. See "--Subordination of Common Securities."
Under current United States federal income tax law and interpretations and
assuming, as expected, that MVBI Capital is treated as a grantor trust, a
distribution of the Subordinated Debentures should not be a taxable event to
holders of the Preferred Securities. Should there be a change in law, a change
in legal interpretation, a Tax Event or
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other circumstances, however, the distribution could be a taxable event to
holders of the Preferred Securities. See "Certain Federal Income Tax
Consequences--Receipt of Subordinated Debentures or Cash Upon Liquidation of
MVBI Capital." If the Company elects neither to redeem the Subordinated
Debentures prior to maturity nor to liquidate MVBI Capital and distribute the
Subordinated Debentures to holders of the Preferred Securities, the Preferred
Securities will remain outstanding until the repayment of the Subordinated
Debentures.
If the Company elects to liquidate MVBI Capital and thereby causes the
Subordinated Debentures to be distributed to holders of the Preferred
Securities in liquidation of MVBI Capital, the Company will continue to have
the right to shorten or extend the maturity of such Subordinated Debentures,
subject to certain conditions. See "Description of the Subordinated
Debentures--General."
LIQUIDATION VALUE
The amount of the Liquidation Distribution payable on the Preferred
Securities in the event of any liquidation of MVBI Capital is $25 per Preferred
Security plus accrued and unpaid Distributions thereon to the date of payment,
which may be in the form of a distribution of such amount in Subordinated
Debentures, subject to certain exceptions. See "--Liquidation Distribution
Upon Termination."
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under the
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities (whatever the reason for such Event of Default and whether voluntary
or involuntary or 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):
(i) the occurrence of a Debenture Event of Default (see "Description
of the Subordinated Debentures--Debenture Events of Default"); or
(ii) default by MVBI Capital in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by MVBI Capital in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in the Trust Agreement (other than
a covenant or warranty a default in the performance of which or the breach
of which is dealt with in clauses (ii) or (iii) above), and continuation of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Trustee(s) by the holders of at
least 25% in aggregate Liquidation Amount of the outstanding Preferred
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of the Preferred Securities, the
Administrative Trustees and the Company, as depositor, unless such Event of
Default has been cured or waived. The Company, as depositor, 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 Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a preference over the Common Securities upon
termination of MVBI Capital. See "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
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REMOVAL OF MVBI CAPITAL TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the holder of the Common Securities. If a
Debenture 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 Preferred Securities. In no
event, however, will the holders of the Preferred Securities have the right to
vote to appoint, remove or replace the Administrative Trustees, which voting
rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of a Trustee and no appointment of a
successor trustee will be effective until the acceptance of appointment by the
successor trustee in accordance with the provisions of the Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default has occurred and is continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property (as defined
in the Trust Agreement) may at the time be located, the Company, as the holder
of the Common Securities, will have power to appoint one or more Persons (as
defined in the Trust Agreement) either to act as a co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such Trust 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 the Trust Agreement. In case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
alone will have power to make such appointment.
MERGER OR CONSOLIDATION OF 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 Trustee is a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, will be the successor of such Trustee under the Trust Agreement,
provided such Person is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF MVBI CAPITAL
MVBI Capital 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 below. MVBI
Capital may, at the request of the Company, with the consent of the
Administrative Trustees and without the consent of the holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either
(a) expressly assumes all of the obligations of MVBI Capital with respect to
the Preferred Securities, or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee in its capacity as the holder of the
Subordinated Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed (including, if applicable, The Nasdaq Stock Market's
National Market), if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (v) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither MVBI Capital nor such successor entity will be required to register as
an "investment company" under the Investment Company Act, and (vi) the
Company owns all of the common securities of such successor entity and
guarantees the
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obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, MVBI
Capital will not, except with the consent of holders of 100% in Liquidation
Amount of the Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause MVBI Capital or the successor entity to be classified as other than
a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the
Guarantee--Amendments and Assignment" and as otherwise required by the Trust
Act and the Trust Agreement, the holders of the Preferred Securities will have
no voting rights.
The Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) with respect to acceptance of
appointment by a successor trustee, (ii) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under the Trust Agreement (provided such amendment is not
inconsistent with the other provisions of the Trust Agreement), or (iii) to
modify, eliminate or add to any provisions of the Trust Agreement to such
extent as is necessary to ensure that MVBI Capital 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 MVBI Capital will not be
required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (ii), such action may not
adversely affect in any material respect the interests of any holder of Trust
Securities, and any amendments of such Trust Agreement will become effective
when notice thereof is given to the holders of Trust Securities. The Trust
Agreement may be amended by the Trustees and the Company with (i) the consent
of holders representing not less than a majority in the aggregate Liquidation
Amount of the outstanding Trust 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
MVBI Capital's status as a grantor trust for United States federal income tax
purposes or MVBI Capital's exemption from status as an "investment company"
under the Investment Company Act. Notwithstanding anything in this paragraph to
the contrary, without the consent of each holder of Trust Securities, the Trust
Agreement may not be amended to (a) 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 (b) restrict the right of a holder of Trust Securities
to institute suit for the enforcement of any such payment on or after such
date.
The Trustees will not, so long as any Subordinated Debentures are held by
the Property Trustee, (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Property Trustee with respect to the
Subordinated Debentures, (ii) waive any past default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Subordinated Debentures will be due and payable, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Subordinated Debentures, where such consent is required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture requires the consent of each holder of
Subordinated Debentures affected thereby, no such consent will be given by the
Property Trustee without the prior consent of each holder of the Preferred
Securities. The Trustees may not revoke any action previously authorized or
approved by a vote of the holders of the Preferred Securities except by
subsequent vote of the holders of the Preferred Securities. The Property
Trustee will notify each holder of Preferred Securities of any notice of
default with respect to the Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees must obtain an opinion of
counsel experienced in such matters to the effect that MVBI Capital 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 Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written
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consent of such holders is to be taken, to be given to each holder of record of
Preferred Securities in the manner set forth in the Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for MVBI Capital to redeem and cancel its Preferred Securities in accordance
with the Trust Agreement.
Notwithstanding the fact that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Trustees or any
affiliate of the Company or any Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities will be made by check
mailed to the address of the holder entitled thereto as such address will
appear on the register of holders of the Preferred Securities. The paying agent
for the Preferred Securities will initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Company. The paying agent for the Preferred
Securities may resign as paying agent upon 30 days' written notice to the
Property Trustee and the Company. In the event that the Property Trustee no
longer is the paying agent for the Preferred Securities, the Administrative
Trustees will appoint a successor (which must be a bank or trust company
acceptable to the Administrative Trustees and the Company) to act as paying
agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as the registrar and the transfer agent for
the Preferred Securities. Registration of transfers of Preferred Securities
will be effected without charge by or on behalf of MVBI Capital, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. MVBI Capital will not be required to
register or cause to be registered the transfer of Preferred Securities after
such Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than upon the occurrence and during the
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the Trust Agreement or is unsure of the application of any provision of the
Trust Agreement, and the matter is not one on which holders of Preferred
Securities are entitled under the Trust Agreement to vote, then the Property
Trustee will take such action as is directed by the Company and if not so
directed, will take such action as it deems advisable and in the best interests
of the holders of the Trust Securities and will have no liability except for
its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate MVBI Capital in such a way that MVBI Capital will not
be deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes and so that the Subordinated
Debentures will be treated as indebtedness of the Company for United States
federal income tax purposes. The Company and the Administrative Trustees are
authorized, in this connection, to take any action, not inconsistent with
applicable law, the certificate of trust of MVBI Capital or the Trust
Agreement, that the Company and the Administrative Trustees determine in their
discretion to be necessary or desirable for such purposes.
Holders of the Preferred Securities have no preemptive or similar rights.
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The Trust Agreement and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, MVBI Capital
will invest the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in the Subordinated Debentures issued by the
Company. The Subordinated Debentures will be issued as unsecured debt under the
Indenture, to be dated as of , 1997 (the "Indenture"),
between the Company and State Street Bank and Trust Company, as trustee (the
"Debenture Trustee"). The Indenture will be qualified as an indenture under
the Trust Indenture Act. The following summary of the material terms and
provisions of the Subordinated Debentures and the Indenture does not purport to
be complete and is subject to, and is qualified in its entirety by reference
to, the Indenture and to the Trust Indenture Act. Wherever particular defined
terms of the Indenture are referred to, but not defined herein, such defined
terms are incorporated herein by reference. The form of the Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part.
GENERAL
The Subordinated Debentures will be limited in aggregate principal amount
to approximately $13,402,075 (or $15,412,375 if the option described under the
heading "Underwriting" is exercised by the Underwriter), such amount being
the sum of the aggregate stated Liquidation Amount of the Trust Securities. The
Subordinated Debentures will bear interest at the annual rate equal to 3-Month
Treasury (determined in the same manner as the Distribution Rate, as described
under "Description of the Preferred Securities--Distributions--Determination
of 3-Month Treasury") plus % (the "Interest Rate") of the principal
amount thereof, payable quarterly in arrears on March 31, June 30, September
30, and December 31 of each year (each, an "Interest Payment Date") beginning
June 30, 1997, to the Person (as defined in the Indenture) in whose name each
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment
Date. It is anticipated that, until the liquidation, if any, of MVBI Capital,
the Subordinated Debentures will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Preferred Securities. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is
payable on the Subordinated Debentures is not a Business Day, then payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on the date such payment
was originally due and payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the Interest Rate, compounded
quarterly. The term "interest," as used herein, includes quarterly interest
payments, interest on quarterly interest payments not paid on the applicable
Interest Payment Date and Additional Interest, as applicable.
The Subordinated Debentures will mature on March 31, 2027 (such date, as it
may be shortened or extended as hereinafter described, the "Stated
Maturity"). Such date may be shortened at any time by the Company to any date
not earlier than March 31, 2002, subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. Such date may also be extended
at any time at the election of the Company but in no event to a date later than
March 31, 2036, provided that at the time such election is made and at the time
of extension (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Subordinated Debentures, (iii) MVBI Capital is not in
arrears on payments of Distributions on the Preferred Securities and no
deferred Distributions are accumulated, and (iv) the Company has a Senior Debt
rating of investment grade. In the event that the Company elects to shorten or
extend the Stated Maturity of the Subordinated Debentures, it will give notice
thereof to the Debenture Trustee, MVBI Capital and to the holders of the
Subordinated Debentures no more than 180 days and no less than 90 days prior to
the effectiveness thereof. The Company will not have the right to purchase the
Subordinated Debentures, in whole or in part, from MVBI Capital until after
March 31, 2002, except if a Tax Event, a Capital Treatment Event or an
Investment Company Event has occurred and is continuing.
The Subordinated Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company. Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of the Bank, upon the Bank's
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<PAGE> 29
liquidation or reorganization or otherwise (and thus the ability of holders of
the Subordinated Debentures to benefit indirectly from such distribution), is
subject to the prior claim of creditors of the Bank, except to the extent that
the Company may itself be recognized as a creditor of such Subsidiary Bank. The
Subordinated Debentures will, therefore, be effectively subordinated to all
existing and future liabilities of the Bank, and holders of Subordinated
Debentures should look only to the assets of the Company for payments on the
Subordinated Debentures. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Company, including Senior
Debt, Subordinated Debt and Additional Senior Obligations, whether under the
Indenture or any existing indenture or other indenture that the Company may
enter into in the future or otherwise. See "--Subordination."
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving the Company that may
adversely affect such holders.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Indenture at any time during the term
of the Subordinated Debentures, so long as no Debenture Event of Default has
occurred and is continuing, to defer the payment of interest at any time, or
from time to time (each, an "Extended Interest Payment Period"). The right to
defer the payment of interest on the Subordinated Debentures is limited,
however, to a period, in each instance, not exceeding 20 consecutive quarters
and no Extended Interest Payment Period may extend beyond the Stated Maturity
of the Subordinated Debentures. At the end of each Extended Interest Payment
Period, the Company must pay all interest then accrued and unpaid (together
with interest thereon at the Interest Rate, compounded quarterly, to the extent
permitted by applicable law). During an Extended Interest Payment Period,
interest will continue to accrue and holders of Subordinated Debentures (or the
holders of Preferred Securities if such securities are then outstanding) will
be required to accrue and recognize income for United States federal income tax
purposes. See "Certain Federal Income Tax Consequences--Potential Extension of
Interest Payment Period and Original Issue Discount."
During any such Extended Interest Payment Period, the Company may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (other than the reclassification of any class of the Company's capital
stock into another class of capital stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in interest to
the Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu or junior in interest to the
Subordinated Debentures (other than payments under the Guarantee), or (iii)
redeem, purchase or acquire less than all of the Subordinated Debentures or any
of the Preferred Securities. Prior to the termination of any such Extended
Interest Payment Period, the Company may further defer the payment of interest;
provided that no Extended Interest Payment Period may exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Subordinated Debentures.
Upon the termination of any such Extended Interest Payment Period and the
payment of all amounts then due on any Interest Payment Date, the Company may
elect to begin a new Extended Interest Payment Period subject to the above
requirements. No interest will be due and payable during an Extended Interest
Payment Period, except at the end thereof. The Company has no present intention
of exercising its rights to defer payments of interest on the Subordinated
Debentures. The Company must give the Property Trustee, the Administrative
Trustees and the Debenture Trustee notice of its election of such Extended
Interest Payment Period at least two Business Days prior to the earlier of (i)
the next succeeding date on which Distributions on the Trust Securities would
have been payable except for the election to begin such Extended Interest
Payment Period, or (ii) the date MVBI Capital is required to give notice of the
record date, or the date such Distributions are payable, to The Nasdaq Stock
Market's National Market (or other applicable self-regulatory organization) or
to holders of the Preferred Securities, but in any event at least one Business
Day before such record date. Subject to the foregoing, there is no limitation
on the number of times that the Company may elect to begin an Extended Interest
Payment Period.
ADDITIONAL SUMS
If MVBI Capital or the Property Trustee is required to pay any additional
taxes, duties or other governmental charges as a result of the occurrence of a
Tax Event, the Company will pay as additional amounts (referred to herein as
"Additional Interest") on the Subordinated Debentures such additional amounts
as may be required so that the
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net amounts received and retained by MVBI Capital after paying any such
additional taxes, duties or other governmental charges will not be less than
the amounts MVBI Capital would have received had such additional taxes, duties
or other governmental charges not been imposed.
REDEMPTION OR EXCHANGE
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after March 31, 2002, in whole at any time or in part
from time to time, or (ii) at any time in whole (but not in part), within 180
days following the occurrence of a Tax Event, a Capital Treatment Event or an
Investment Company Event, in each case at a redemption price equal to the
accrued and unpaid interest on the Subordinated Debentures so redeemed to the
date fixed for redemption, plus 100% of the principal amount thereof. Any such
redemption prior to the Stated Maturity will be subject to prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by MVBI Capital of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) interest payable by the Company on the Subordinated
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Company, in whole or in part, for United States federal
income tax purposes, (ii) MVBI Capital is, or will be within 90 days after the
date of such opinion of counsel, subject to United States federal income tax
with respect to income received or accrued on the Subordinated Debentures, or
(iii) MVBI Capital is, or will be within 90 days after the date of such opinion
of counsel, subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges. The Company must request and receive
an opinion with regard to such matters within a reasonable period of time after
it becomes aware of the possible occurrence of any of the events described in
clauses (i) through (iii) above.
"Capital Treatment Event" means the receipt by MVBI Capital of an opinion
of counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision 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 such proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the
aggregate liquidation amount of the Preferred Securities (or any substantial
portion thereof) as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company.
"Investment Company Event" means the receipt by MVBI Capital of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, MVBI Capital is or will be
considered an "investment company" that is required to be registered under
the Investment Company Act, which change becomes effective on or after the date
of original issuance of the Preferred Securities.
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 Subordinated Debentures to
be redeemed at its registered address. Unless the Company defaults in payment
of the redemption price for the Subordinated Debentures, on and after the
redemption date interest ceases to accrue on such Subordinated Debentures or
portions thereof called for redemption.
The Subordinated Debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred Securities--Liquidation
Distribution Upon Termination," under certain circumstances involving the
termination of MVBI Capital, the Subordinated Debentures may be distributed to
the holders of the Preferred Securities in liquidation of MVBI Capital after
satisfaction of liabilities to
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creditors of MVBI Capital as provided by applicable law. Any such distribution
will be subject to receipt of prior approval by the Federal Reserve if then
required under applicable policies or guidelines of the Federal Reserve. If the
Subordinated Debentures are distributed to the holders of Preferred Securities
upon the liquidation of MVBI Capital, the Company will use its best efforts to
list the Subordinated Debentures on The Nasdaq Stock Market's National Market
or such stock exchanges, if any, on which the Preferred Securities are then
listed. There can be no assurance as to the market price of any Subordinated
Debentures that may be distributed to the holders of Preferred Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
If at any time (i) there has occurred a Debenture Event of Default, (ii)
the Company is in default with respect to its obligations under the Guarantee,
or (iii) the Company has given notice of its election of an Extended Interest
Payment Period as provided in the Indenture with respect to the Subordinated
Debentures and has not rescinded such notice, or such Extended Interest Payment
Period, or any extension thereof, is continuing, the Company will not (1)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Company's capital
stock (other than the reclassification of any class of the Company's capital
stock into another class of capital stock), (2) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in interest to
the Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu or junior in interest to the
Subordinated Debentures (other than payments under the Guarantee), or (3)
redeem, purchase or acquire less than all of the Subordinated Debentures or any
of the Preferred Securities.
SUBORDINATION
The Indenture provides that the Subordinated Debentures issued thereunder
are subordinated and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceedings of the Company, the holders of Senior Debt, Subordinated
Debt and Additional Senior Obligations of the Company will first be entitled to
receive payment in full of principal of (and premium, if any) and interest, if
any, on such Senior Debt, Subordinated Debt and Additional Senior Obligations
of the Company before the holders of Subordinated Debentures will be entitled
to receive or retain any payment in respect of the principal of or interest on
the Subordinated Debentures.
In the event of the acceleration of the maturity of any Subordinated
Debentures, the holders of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of the
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
No payments on account of principal or interest in respect of the
Subordinated Debentures may be made if there has occurred and is continuing a
default in any payment with respect to Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company or an event of default with
respect to any Senior Debt, Subordinated Debt or Additional Senior Obligations
of the Company resulting in the acceleration of the maturity thereof, or if any
judicial proceeding is pending with respect to any such default.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every capital lease obligation of such Person, and (vi) and
every obligation of the type referred to in clauses (i) through (v) of another
Person and all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
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"Senior Debt" means, with respect to the Company, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of the Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Subordinated Debentures
or to other Debt which is pari passu with, or subordinated to, the Subordinated
Debentures; provided, however, that Senior Debt will not be deemed to include
(i) any Debt of the Company which when incurred and without respect to any
election under section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (ii) any Debt of the Company to
any of its subsidiaries, (iii) any Debt to any employee of the Company, (iv)
any Debt which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Debt by the holders of the
Subordinated Debentures as a result of the subordination provisions of the
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such
trade accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject,
and (v) Debt which constitutes Subordinated Debt.
"Subordinated Debt" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not such claim for post-petition interest is allowed
in such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, which is by its terms expressly provided to
be junior and subordinate to other Debt of the Company (other than the
Subordinated Debentures).
"Additional Senior Obligations" means, with respect to the Company, all
indebtedness, whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations do not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Subordinated Debentures or to rank pari passu in right of
payment with the Subordinated Debentures. "Claim," as used herein, has the
meaning assigned thereto in Section 101(4) of the United States Bankruptcy Code
of 1978, as amended.
The Indenture places no limitation on the amount of additional Senior Debt,
Subordinated Debt or Additional Senior Obligations that may be incurred by the
Company. The Company expects from time to time to incur additional indebtedness
constituting Senior Debt, Subordinated Debt and Additional Senior Obligations.
As of December 31, 1996, the Company had aggregate Senior Debt, Subordinated
Debt and Additional Senior Obligations of approximately $2.7 million. Because
the Company is a holding company, the Subordinated Debentures are effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, including obligations to depositors of the Bank.
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures
will be made at the office of the Debenture Trustee in New York, New York,
except that, at the option of the Company, payment of any interest may be made
(i) by check mailed to the address of the Person entitled thereto as such
address appears in the register of holders of the Subordinated Debentures, or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the register of holders of the Subordinated Debentures, provided
that proper transfer instructions have been received by the regular record
date. Payment of any interest on Subordinated Debentures will be made to the
Person in whose name such Subordinated Debenture is registered at the close of
business on the regular record date for such interest, except in the case of
defaulted interest. The Company may at any time designate additional paying
agents for the Subordinated Debentures or rescind the designation of any paying
agent for the Subordinated Debentures; however, the Company will at all times
be required to maintain a paying agent in New York, New York and each place of
payment for the Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying agent for the
Subordinated Debentures, or then held by the Company in trust, for the payment
of the principal of or interest on the Subordinated Debentures and remaining
unclaimed for two years after such principal or interest has become due and
payable will be repaid to
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the Company on May 31 of each year or (if then held in trust by the Company)
will be discharged from such trust and the holder of such Subordinated
Debenture will thereafter look, as a general unsecured creditor, only to the
Company for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Debenture Trustee will act as the registrar and the transfer agent for
the Subordinated Debentures. Subordinated Debentures may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed) in New York, New
York or at the office of the registrar in Boston, Massachusetts. The Company
may at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts; provided
that the Company maintains a transfer agent in New York, New York. The Company
may at any time designate additional transfer agents with respect to the
Subordinated Debentures. In the event of any redemption, neither the Company
nor the Debenture Trustee will be required to (i) issue, register the transfer
of or exchange Subordinated Debentures during a period beginning at the opening
of business 15 days before the day of selection for redemption of Subordinated
Debentures and ending at the close of business on the day of mailing of the
relevant notice of redemption, or (ii) transfer or exchange any Subordinated
Debentures so selected for redemption, except, in the case of any Subordinated
Debentures being redeemed in part, any portion thereof not to be redeemed.
MODIFICATION OF INDENTURE
The Company and the Debenture Trustee may, from time to time without the
consent of the holders of the Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies and qualifying, or maintaining
the qualification of, the Indenture under the Trust Indenture Act. The
Indenture contains provisions permitting the Company and the Debenture Trustee,
with the consent of the holders of not less than a majority in principal amount
of the outstanding Subordinated Debentures, to modify the Indenture; provided,
that no such modification may, without the consent of the holder of each
outstanding Subordinated Debenture affected by such proposed modification, (i)
extend the fixed maturity of the Subordinated Debentures, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or (ii) reduce the percentage of principal amount of
Subordinated Debentures, the holders of which are required to consent to any
such modification of the Indenture; provided that so long as any of the
Preferred Securities remain outstanding, no such modification may be made that
requires the consent of the holders of the Subordinated Debentures, and no
termination of the Indenture may occur, and no waiver of any Debenture Event of
Default may be effective, without the prior consent of the holders of at least
a majority of the aggregate Liquidation Amount of the Preferred Securities and
that if the consent of the holder of each Subordinated Debenture is required,
such modification will not be effective until each holder of Trust Securities
has consented thereto.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Subordinated Debentures that has occurred and is
continuing constitutes an event of default (each, a "Debenture Event of
Default") with respect to the Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Subordinated
Debentures, when due (subject to the deferral of any due date in the case
of an Extended Interest Payment Period); or
(ii) failure to pay any principal on the Subordinated Debentures when
due whether at maturity, upon redemption by declaration or otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of the Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
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Trustee. The Debenture Trustee, or the holders of not less than 25% in
aggregate outstanding principal amount of the Subordinated Debentures, may
declare the principal due and payable immediately upon a Debenture Event of
Default. The holders of a majority in aggregate outstanding principal amount of
the Subordinated Debentures may annul such declaration and waive the default if
the default (other than the non-payment of the principal of the Subordinated
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.
Should the holders of the Subordinated Debentures fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities will have such right.
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
If a Debenture Event of Default has occurred and is continuing, the
Property Trustee will have the right to declare the principal of and the
interest on such Subordinated Debentures, and any other amounts payable under
the Indenture, to be forthwith due and payable and to enforce its other rights
as a creditor with respect to such Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may institute
a legal proceeding directly against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder (a "Direct Action"). In connection with
such Direct Action, the Company will have a right of set-off under the
Indenture to the extent of any payment made by the Company to such holder of
Preferred Securities in the Direct Action. The Company may not amend the
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Preferred Securities. If the
right to bring a Direct Action is removed, MVBI Capital may become subject to
the reporting obligations under the Exchange Act. The Company has the right
under the Indenture to set-off any payment made to such holder of Preferred
Securities by the Company in connection with a Direct Action.
The holders of the Preferred 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 Subordinated Debentures unless there has been
an Event of Default under the Trust Agreement. See "Description of the
Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, and any Person may not consolidate with or merge into the Company
or sell, convey, transfer or otherwise dispose of its properties and assets
substantially as an entirety to the Company, unless (i) in the event the
Company consolidates with or merges into another Person or conveys or transfers
its properties and assets substantially as an entirety to any Person, the
successor Person is organized under the laws of the United States or any State
or the District of Columbia, and such successor Person expressly assumes by
supplemental indenture the Company's obligations on the Subordinated Debentures
issued under the Indenture, (ii) 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, has occurred and is
continuing, and (iii) certain other conditions as prescribed in the Indenture
are met.
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to the
Company's obligations to pay certain sums due pursuant to the Indenture and to
provide certain officers' certificates and opinions of counsel described
therein) and the Company will be deemed to have satisfied and discharged the
Indenture when, among other things, all Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity within
one year or are to be called for
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redemption within one year, and the Company 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 Subordinated
Debentures not previously delivered to the Debenture Trustee for cancellation,
for the principal and interest to the date of the deposit or to the Stated
Maturity or redemption date, as the case may be.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of Missouri.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is 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 Subordinated 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.
MISCELLANEOUS
The Company has agreed, pursuant to the Indenture, for so long as Trust
Securities remain outstanding, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of MVBI Capital (provided that certain
successors which are permitted pursuant to the Indenture may succeed to the
Company's ownership of the Common Securities), (ii) not to voluntarily
terminate, wind up or liquidate MVBI Capital, except upon prior approval of the
Federal Reserve if then so required under applicable capital guidelines or
policies of the Federal Reserve, and (a) in connection with a distribution of
Subordinated Debentures to the holders of the Preferred Securities in
liquidation of MVBI Capital, or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement, and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause MVBI Capital to remain classified as a grantor trust
and not as an association taxable as a corporation for United States federal
income tax purposes.
DESCRIPTION OF THE GUARANTEE
The Preferred Securities Guarantee Agreement (the "Guarantee") will be
executed and delivered by the Company concurrently with the issuance of the
Preferred Securities for the benefit of the holders of the Preferred
Securities. The Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Guarantee Trustee, State Street Bank and Trust Company, will
act as indenture trustee under the Guarantee for purposes of complying with the
provisions of the Trust Indenture Act and will hold the Guarantee for the
benefit of the holders of the Preferred Securities. The following summary of
the material terms and provisions of the 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 Guarantee and the Trust Indenture Act. Wherever
particular defined terms of the Guarantee are referred to, but not defined
herein, such defined terms are incorporated herein by reference. The form of
the Guarantee has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part.
GENERAL
The Company will, pursuant to the Guarantee, irrevocably agree to pay in
full on a subordinated basis, to the extent set forth therein, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities, as and
when due, regardless of any defense, right of set-off or counterclaim that MVBI
Capital may have or assert other than the defense of payment. The following
payments with respect to the Preferred Securities, to the extent not paid by or
on behalf of MVBI Capital (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accrued and unpaid Distributions required to be paid on the
Preferred Securities, to the extent that MVBI Capital has funds available
therefor at such time, (ii) the Redemption Price with respect to any Preferred
Securities called for redemption to the extent that MVBI Capital has funds
available therefor at such time, and (iii) upon a voluntary or involuntary
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dissolution, winding up or liquidation of MVBI Capital (other than in
connection with the distribution of Subordinated Debentures to the holders of
Preferred Securities or a redemption of all of the Preferred Securities), the
lesser of (a) the amount of the Liquidation Distribution, to the extent MVBI
Capital has funds available therefor at such time, and (b) the amount of assets
of MVBI Capital remaining available for distribution to holders of Preferred
Securities in liquidation of MVBI Capital. The obligation of the Company to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of the Preferred Securities or by causing
MVBI Capital to pay such amounts to such holders.
The Guarantee will not apply to any payment of Distributions except to the
extent MVBI Capital has funds available therefor. If the Company does not make
interest payments on the Subordinated Debentures held by MVBI Capital, MVBI
Capital will not pay Distributions on the Preferred Securities and will not
have funds legally available therefor.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company in the same
manner as the Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior Debt, Subordinated Debt or
Additional Senior Obligations that may be incurred by the Company. The Company
expects from time to time to incur additional indebtedness constituting Senior
Debt, Subordinated Debt and Additional Senior Obligations.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other Person). The Guarantee will
not be discharged except by payment of the Guarantee Payments in full to the
extent not paid by MVBI Capital or upon distribution of the Subordinated
Debentures to the holders of the Preferred Securities. Because the Company is a
holding company, the right of the Company to participate in any distribution of
assets of the Bank upon the Bank's liquidation or reorganization or otherwise
is subject to the prior claims of creditors of the Bank, except to the extent
the Company may itself be recognized as a creditor of the Bank. The Company's
obligations under the Guarantee, therefore, will be effectively subordinated to
all existing and future liabilities of the Company's subsidiaries, and
claimants should look only to the assets of the Company for payments
thereunder.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will
be required), the Guarantee may not be amended without the prior approval of
the holders of not less than a majority of the aggregate Liquidation Amount of
the outstanding Preferred Securities. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreement." All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of the holders of the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against MVBI Capital, the Guarantee
Trustee or any other Person.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
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INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to such provisions, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of any Preferred Securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon (a)
full payment of the Redemption Price of the Preferred Securities, (b) full
payment of the amounts payable upon liquidation of MVBI Capital, or (c)
distribution of the Subordinated Debentures to the holders of the Preferred
Securities. The Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of the Preferred Securities must
restore payment of any sums paid under such Preferred Securities or the
Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of Missouri.
EXPENSE AGREEMENT
The Company will, pursuant to the Agreement as to Expenses and Liabilities
entered into by it under the Trust Agreement (the "Expense Agreement"),
irrevocably and unconditionally guarantee to each person or entity to whom MVBI
Capital becomes indebted or liable, the full payment of any costs, expenses or
liabilities of MVBI Capital, other than obligations of MVBI Capital to pay to
the holders of the Preferred Securities or other similar interests in MVBI
Capital of the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be. Third party
creditors of MVBI Capital may proceed directly against the Company under the
Expense Agreement, regardless of whether such creditors had notice of the
Expense Agreement.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent MVBI Capital has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of the Guarantee." The Company and MVBI Capital
believe that, taken together, the obligations of the Company under the
Subordinated Debentures, the Indenture, the Trust Agreement, the Expense
Agreement, and the Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of payment of Distributions
and other amounts due on the Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes 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 obligations of MVBI Capital under the Preferred
Securities. If and to the extent that the Company does not make payments on the
Subordinated Debentures, MVBI Capital will not pay Distributions or other
amounts due on the Preferred Securities. The Guarantee does not cover payment
of Distributions when MVBI Capital does not have sufficient funds to pay such
Distributions. In such event, the remedy of a holder of Preferred Securities is
to institute a legal proceeding directly against the Company for enforcement of
payment of such Distributions to such holder. The obligations of the Company
under the Guarantee are subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations of the
Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Preferred Securities, primarily
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because (i) the aggregate principal amount of the Subordinated Debentures will
be equal to the sum of the aggregate stated Liquidation Amount of the Trust
Securities, (ii) the interest rate and interest and other payment dates on the
Subordinated Debentures will match the Distribution Rate and Distribution and
other payment dates for the Preferred Securities, (iii) the Company will pay
for all and any costs, expenses and liabilities of MVBI Capital (except the
obligations of MVBI Capital to holders of the Preferred Securities), and (iv)
the Trust Agreement further provides that MVBI Capital will not engage in any
activity that is not consistent with the limited purposes of MVBI Capital.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee, MVBI
Capital or any other Person. A default or event of default under any Senior
Debt, Subordinated Debt or Additional Senior Obligations of the Company would
not constitute a default or Event of Default. In the event, however, of payment
defaults under, or acceleration of, Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company, the subordination provisions of
the Indenture provide that no payments may be made in respect of the
Subordinated Debentures until such Senior Debt, Subordinated Debt or Additional
Senior Obligations has been paid in full or any payment default thereunder has
been cured or waived. Failure to make required payments on the Subordinated
Debentures would constitute an Event of Default.
LIMITED PURPOSE OF MVBI CAPITAL
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of MVBI Capital. MVBI Capital exists for the sole purpose of
issuing the Trust Securities and investing the proceeds thereof in Subordinated
Debentures. A principal difference between the rights of a holder of a
Preferred Security and the rights of a holder of a Subordinated Debenture is
that a holder of a Subordinated Debenture is entitled to receive from the
Company the principal amount of and interest accrued on Subordinated Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions from MVBI Capital (or from the Company under the Guarantee) if
and to the extent MVBI Capital has funds available for the payment of such
Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
MVBI Capital involving the liquidation of the Subordinated Debentures, the
holders of the Preferred Securities will be entitled to receive, out of assets
held by MVBI Capital, the Liquidation Distribution in cash. See "Description
of the Preferred Securities--Liquidation Distribution Upon Termination." Upon
any voluntary or involuntary liquidation or bankruptcy of the Company, the
Property Trustee, as holder of the Subordinated Debentures, would be a
subordinated creditor of the Company, subordinated in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations of the Company
(as set forth in the Indenture), but entitled to receive payment in full of
principal and interest before any shareholders of the Company receive payments
or distributions. Since the Company is the guarantor under the Guarantee and
has agreed to pay for all costs, expenses and liabilities of MVBI Capital
(other than the obligations of MVBI Capital to the holders of its Preferred
Securities), the positions of a holder of the Preferred Securities and a holder
of the Subordinated Debentures relative to other creditors and to shareholders
of the Company in the event of liquidation or bankruptcy of the Company are
expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following is a summary of the material United States federal income tax
considerations that may be relevant to the purchasers of Preferred Securities
which has been passed upon by Armstrong, Teasdale, Schlafly & Davis, counsel to
the Company and MVBI Capital insofar as it relates to matters of law and legal
conclusions. The conclusions expressed herein are based upon current provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), regulations
thereunder and current administrative rulings and court decisions, all of which
are subject to change at any time, with possible retroactive effect. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below. Furthermore, the authorities on which the following summary
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is based are subject to various interpretations, and it is therefore possible
that the United States federal income tax treatment of the purchase, ownership,
and disposition of Preferred Securities may differ from the treatment described
below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Preferred
Securities. Moreover, the discussion generally focuses on holders of Preferred
Securities who are individual citizens or residents of the United States and
who acquire Preferred Securities on their original issue at their offering
price and hold Preferred Securities as capital assets. The discussion has only
limited application to dealers in securities, corporations, estates, trusts or
nonresident aliens and does not address all the tax consequences that may be
relevant to holders who may be subject to special tax treatment, such as, for
example, banks, thrifts, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors, or persons that will hold the Preferred 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. The following summary also does not address the tax consequences
to persons that have a functional currency other than the U.S. dollar or the
tax consequences to shareholders, partners or beneficiaries of a holder of
Preferred Securities. Further, it does not include any description of any
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 Preferred
Securities. Accordingly, each prospective investor should consult, and should
rely exclusively on, such investor's own tax advisors in analyzing the federal,
state, local and foreign tax consequences of the purchase, ownership or
disposition of Preferred Securities.
CLASSIFICATION OF THE SUBORDINATED DEBENTURES
The Company intends to take the position that the Subordinated Debentures
will be classified for United States federal income tax purposes as
indebtedness of the Company under current law, and, by acceptance of a
Preferred Security, each holder covenants to treat the Subordinated Debentures
as indebtedness and the Preferred Securities as evidence of an indirect
beneficial ownership interest in the Subordinated Debentures. No assurance can
be given, however, that such position of the Company will not be challenged by
the Internal Revenue Service or, if challenged, that such a challenge will not
be successful. The remainder of this discussion assumes that the Subordinated
Debentures will be classified for United States federal income tax purposes as
indebtedness of the Company.
CLASSIFICATION OF MVBI CAPITAL
Under current law and assuming full compliance with the terms of the Trust
Agreement and Indenture (and certain other documents described herein), MVBI
Capital will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation. Accordingly,
for United States federal income tax purposes, each holder of Preferred
Securities generally will be treated as owning an undivided beneficial interest
in the Subordinated Debentures, and each holder will be required to include in
its gross income any OID accrued with respect to its allocable share of the
Subordinated Debentures whether or not cash is actually distributed to such
holder.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Because the Company has the option, under the terms of the Subordinated
Debentures, to defer (so long as no Debenture Event of Default has occurred and
is continuing) payments of interest by extending interest payment periods for
up to 20 consecutive quarters, all of the stated interest payments on the
Subordinated Debentures will be treated as OID. Holders of debt instruments
issued with OID must include that discount in income on an economic accrual
basis before the receipt of cash attributable to the interest, regardless of
their method of tax accounting. Generally, all of a holder's taxable interest
income with respect to the Subordinated Debentures will be accounted for as
OID. Actual payments and distributions of stated interest will not, however, be
separately reported as taxable income. The amount of OID that accrues in any
quarter will approximately equal the amount of the interest that accrues on the
Subordinated Debentures in that quarter at the stated interest rate. In the
event that the interest payment period is extended, holders will continue to
accrue OID approximately equal to the amount of the interest payment due at the
end of the extended interest payment period on an economic accrual basis over
the length of the extended interest payment period.
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Because income on the Preferred Securities will constitute interest income
generally and OID specifically, corporate holders of Preferred Securities will
not be entitled to a dividends-received deduction with respect to any income
recognized with respect to the Preferred Securities.
MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of Preferred Securities other than a holder who purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interests in the Subordinated Debentures with "market
discount" or "acquisition premium" as such phrases are defined for United
States federal income tax purposes. Such holders are advised to consult their
tax advisors as to the income tax consequences of the acquisition, ownership
and disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF MVBI CAPITAL
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination," the Subordinated Debentures may be distributed to holders
of Preferred Securities upon a liquidation of MVBI Capital. Under current
United States federal income tax law, such a distribution would be treated as a
nontaxable event to each such holder and would result in such holder having an
aggregate tax basis in the Subordinated Debentures received in the liquidation
equal to such holder's aggregate tax basis in the Preferred Securities
immediately before the distribution. A holder's holding period in the
Subordinated Debentures so received in liquidation of MVBI Capital would
include the period for which such holder held the Preferred Securities.
If, however, a Tax Event occurs which results in MVBI Capital being treated
as an association taxable as a corporation, the distribution would likely
constitute a taxable event to holders of the Preferred Securities. Under
certain circumstances described herein, the Subordinated Debentures may be
redeemed for cash and the proceeds of such redemption distributed to holders in
redemption of their Preferred Securities. Under current law, such a redemption
would, for United States federal income tax purposes, constitute a taxable
disposition of the redeemed Preferred Securities, and a holder would recognize
gain or loss as if the holder sold such Preferred Securities for cash. See
"Description of the Preferred Securities--Redemption or Exchange" and
"--Liquidation Distribution Upon Termination."
DISPOSITION OF PREFERRED SECURITIES
A holder that sells Preferred Securities will recognize gain or loss equal
to the difference between the amount realized on the sale of the Preferred
Securities and the holder's adjusted tax basis in such Preferred Securities. A
holder's adjusted tax basis in the Preferred Securities generally will be its
initial purchase price increased by OID previously includible in such holder's
gross income to the date of disposition and decreased by payments received on
the Preferred Securities to the date of disposition. Such gain or loss will
generally be a capital gain or loss and will be a long-term capital gain or
loss if the Preferred Securities have been held for more than one year at the
time of sale.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder that disposes of its Preferred Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Subordinated Debentures through the
date of disposition in income as ordinary income, and to add such amount to its
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. To the extent the selling price is less than the
holder's adjusted tax basis (which basis will include, in the form of OID, all
accrued but unpaid interest), a holder 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.
EFFECT OF PROPOSED CHANGES IN TAX LAWS
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations issued on or after December 7,
1995 (the "1996 Proposed Legislation") if such debt obligations have a maximum
term in excess of 20 years and are not shown as indebtedness on the issuer's
applicable consolidated balance sheet. On March 29, 1996, Senate Finance
Committee Chairman William V. Roth, Jr. and House Ways and Means Committee
Chairman Bill Archer
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issued a joint statement (the "Joint Statement") indicating their intent that
certain legislative proposals initiated by the Clinton administration,
including the 1996 Proposed Legislation, that may be adopted by either of the
tax-writing committees of Congress would have an effective date that is no
earlier than the date of "appropriate Congressional action." In addition,
subsequent to the publication of the Joint Statement, Senator Daniel Patrick
Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel wrote letters
to Treasury Department officials concurring with the views expressed in the
Joint Statement (the "Democrat Letters"). Based upon the Joint Statement and
the Democrat Letters, it is expected that if the 1996 Proposed Legislation were
to be enacted, such legislation would not apply to the Subordinated Debentures.
There can be no assurances, however, that the effective date guidance contained
in the Joint Statement and the Democrat Letters will be incorporated into the
1996 Proposed Legislation, if enacted. On February 6, 1997, President Clinton
proposed in the administration's fiscal year 1998 budget certain tax law
changes (the "1997 Proposed Legislation") that would, among other things,
generally deny corporate issuers a deduction for interest or OID in respect of
certain debt obligations if such debt obligations have a maximum term in excess
of 15 years and are not shown as indebtedness on the issuer's applicable
consolidated balance sheet. The proposed budget also contains a provision that
would deny a deduction to corporate issuers for interest or OID with respect to
debt instruments that have a maximum term of more than 40 years (including
rights to extend, renew or relend), or are payable in stock of the issuer or a
related party. The U.S. Treasury Department's summary of the 1997 Proposed
Legislation states that the above provisions regarding the deduction of
interest would generally be effective for instruments issued on or after the
date of first Congressional committee action with respect to the 1997 Proposed
Legislation. The Ways and Means Committee began a full committee hearing on the
President's fiscal 1998 budget on February 11, 1997. There can be no assurance
that the effective date guidance in the administration's proposal will be
adopted if the proposed change to the tax law is enacted, or that other
legislation enacted after the date hereof will not otherwise adversely affect
the ability of the Company to deduct the interest payable on the Subordinated
Debentures. Consequently, there can be no assurance that a Tax Event will not
occur. A Tax Event would permit the Company, upon approval of the Federal
Reserve if then required under applicable capital guidelines or policies of the
Federal Reserve, to cause a redemption of the Preferred Securities before, as
well as after, March 31, 2002. See "Description of the Subordinated
Debentures--Redemption or Exchange" and "Description of the Preferred
Securities--Redemption or Exchange--Tax Event Redemption, Capital Treatment
Event Redemption or Investment Company Event Redemption."
BACKUP WITHHOLDING AND INFORMATION REPORTING
The amount of OID accrued on the Preferred Securities held of record by
individual citizens or residents of the United States, or certain trusts,
estates, and partnerships, will be reported to the Internal Revenue Service on
Forms 1099, which forms should be mailed to such holders of Preferred
Securities by January 31 following each calendar year. Payments made on, and
proceeds from the sale of, the Preferred Securities may be subject to a
"backup" withholding tax (currently at 31%) unless the holder complies with
certain identification and other requirements. Any amounts withheld under the
backup withholding rules will be allowed as a credit against the holder's
United States federal income tax liability, provided the required information
is provided to the Internal Revenue Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED
SECURITIES SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES
FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
("Plans"), generally may purchase Preferred Securities, subject to the
investing fiduciary's determination that the investment in Preferred Securities
satisfies ERISA's fiduciary standards and other requirements applicable to
investments by the Plan.
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In any case, the Company and/or any of its affiliates 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
certain plans (generally, Plans maintained or sponsored by, or contributed to
by, any such persons with respect to which the Company or an affiliate is a
fiduciary or Plans for which the Company or an affiliate provides services).
The acquisition and ownership of Preferred Securities by a Plan (or by an
individual retirement arrangement or other Plans described in Section
4975(e)(1) of the Code) with respect to which the Company or any of its
affiliates is considered a party in interest or a disqualified person may
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, unless such Preferred Securities are acquired pursuant to and in
accordance with an applicable exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
Preferred Securities unless such Preferred Securities are acquired pursuant to
and in accordance with an applicable exemption. Any other Plans or other
entities whose assets include Plan assets subject to ERISA or Section 4975 of
the Code proposing to acquire Preferred Securities should consult with their
own counsel.
UNDERWRITING
Stifel, Nicolaus & Company, Incorporated (the "Underwriter"), has agreed,
subject to the terms and conditions set forth in the Underwriting Agreement,
the form of which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, to purchase from MVBI Capital 520,000 Preferred
Securities. The Underwriter has agreed in the Underwriting Agreement, subject
to the terms and conditions set forth therein, to purchase all the Preferred
Securities offered hereby if any of the Preferred Securities are purchased.
The Underwriter has advised MVBI Capital that it proposes initially to
offer the Preferred Securities to the public at the public offering price set
forth on the cover page of this Prospectus, and to certain dealers at such
price less a concession not in excess of $ per Preferred Security. The
Underwriter may allow, and such dealers may reallow, a discount not in excess
of $ per Preferred Security to certain other dealers. After the initial
public offering, the public offering price, concession and discount may be
changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debentures of the Company,
the Underwriting Agreement provides that the Company will pay as compensation
to the Underwriter arranging the investment therein of such proceeds, an amount
in immediately available funds of $ per Preferred Security (or $ in
the aggregate) for the account of the Underwriter.
MVBI Capital has granted the Underwriter an option to purchase up to an
additional 78,000 Preferred Securities at the initial public offering price.
Such option, which expires 30 days from the date of this Prospectus, may be
exercised solely to cover over-allotments. To the extent that the Underwriter
exercises its option to purchase additional Preferred Securities, MVBI Capital
will issue and sell to the Company additional Common Securities and the Company
will issue and sell to MVBI Capital Subordinated Debentures in an aggregate
principal amount equal to the total aggregate Liquidation Amount of the
additional Preferred Securities being purchased pursuant to the option.
During a period of 30 days from the date of this Prospectus, neither MVBI
Capital nor the Company will, subject to certain exceptions, without the prior
written consent of the Underwriter, directly or indirectly, sell, offer to
sell, grant any option for sale of, or otherwise dispose of, any Preferred
Securities, any security convertible into or exchangeable into or exercisable
for Preferred Securities or Subordinated Debentures or any debt securities
substantially similar to the Subordinated Debentures or equity securities
substantially similar to the Preferred Securities (except for Subordinated
Debentures and the Preferred Securities offered hereby).
Applicaton has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market. The Underwriter has
advised MVBI Capital that it presently intends to make a market in the
Preferred Securities after the commencement of trading on The Nasdaq Stock
Market's National Market, but no assurances can be made as to the liquidity of
such Preferred Securities or that an active and liquid trading market will
develop or, if developed, that it will continue. The offering price and
distribution rate have been determined by negotiations among representatives of
the Company and the Underwriter, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
The Underwriter will have no obligation to
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make a market in the Preferred Securities, however, and may cease market-making
activities, if commenced, at any time.
MVBI Capital and the Company have agreed to indemnify the Underwriter
against, or contribute to payments that the Underwriter may be required to make
in respect of, certain liabilities, including liabilities under the Securities
Act.
The Underwriter engages in transactions with, and, from time to time, has
performed services for, the Company and its subsidiaries in the ordinary course
of business.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of MVBI
Capital will be passed upon by Richards, Layton & Finger, special Delaware
counsel to the Company and MVBI Capital. Certain legal matters for the Company
and MVBI Capital, including the validity of the Guarantee and the Subordinated
Debentures will be passed upon for the Company and MVBI Capital by Armstrong,
Teasdale, Schlafly & Davis, St. Louis, Missouri, counsel to the Company and
MVBI Capital. Certain legal matters will be passed upon for the Underwriter by
Lewis, Rice & Fingersh, L.C., St. Louis, Missouri. Armstrong, Teasdale,
Schlafly & Davis and Lewis, Rice & Fingersh, L.C., will rely on the opinion of
Richards, Layton & Finger as to matters of Delaware law. Certain matters
relating to United States federal income tax considerations will be passed upon
for the Company by Armstrong, Teasdale, Schlafly & Davis.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report (Form 10-K) for the year ended
December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated by reference
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document, previously filed by the Company with the Securities
and Exchange Commission (the "Commission") pursuant to Section 13 of the
Exchange Act, is incorporated herein by reference:
The Company's Annual Report on Form 10-K for the year ended December
31, 1996.
All reports and any definitive proxy or information statements filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Preferred Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER
THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY
REFERENCE IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO PAUL M. STRIEKER, EXECUTIVE VICE PRESIDENT, CONTROLLER AND CHIEF
FINANCIAL OFFICER, MISSISSIPPI VALLEY BANCSHARES, INC., 700 CORPORATE PARK
DRIVE, ST. LOUIS, MISSOURI 63105. TELEPHONE REQUESTS MAY BE DIRECTED TO (314)
268-2580.
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AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and MVBI Capital with the Commission under
the Securities Act, with respect to the Preferred Securities and the
Subordinated Debentures. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission,
although it does include a summary of the material terms of the Indenture and
the Trust Agreement. Reference is made to such Registration Statement and to
the exhibits relating thereto for further information with respect to the
Company, MVBI Capital, the Preferred Securities and the Subordinated
Debentures. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission or incorporated by reference herein are not necessarily
complete, and, in each instance, reference is made to the copy of such document
so filed for a more complete description of the matter involved. Each such
statement is qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549, upon payment of prescribed rates. The Commission
maintains in Internet web site that contains reports, proxy and information
statements and other information regarding issuers who file electronically with
the Commission. The address of that site is http://www.sec.gov. In addition,
reports, proxy statements and other information concerning the Company may be
inspected at the offices of the National Association of Securities Dealers,
Inc., 1735 K Street, N.W., Washington, D.C. 20006.
No separate financial statements of MVBI Capital have been included herein.
The Company does not consider that such financial statements would be material
to holders of Preferred Securities because (i) all of the voting securities of
MVBI Capital will be owned by the Company, a reporting company under the
Exchange Act, (ii) MVBI Capital has no independent operations but exists for
the sole purpose of issuing securities representing undivided beneficial
interests in the assets of MVBI Capital and investing the proceeds thereof in
Subordinated Debentures issued by the Company, and (iii) the obligations of the
Company described herein to provide certain indemnities in respect of and be
responsible for certain costs, expenses, debts and liabilities of MVBI Capital
under the Indenture and pursuant to the Trust Agreement, the Guarantee issued
by the Company with respect to the Preferred Securities, the Subordinated
Debentures purchased by MVBI Capital and the related Indenture, taken together,
constitute, in the belief of the Company and MVBI Capital, a full and
unconditional guarantee of payments due on the Preferred Securities. See
"Description of the Subordinated Debentures" and "Description of the
Guarantee."
MVBI Capital is not currently subject to the information reporting
requirements of the Exchange Act. MVBI Capital will become subject to such
requirements upon the effectiveness of the Registration Statement, although it
intends to seek and expects to receive an exemption therefrom.
40
<PAGE> 45
- --------------------------------------------------------------------------------
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary........................................... 2
Selected Consolidated Financial Data......................... 6
Risk Factors................................................. 7
Use of Proceeds.............................................. 12
Market for the Preferred Securities.......................... 12
Accounting Treatment......................................... 12
Capitalization............................................... 13
Description of the Preferred Securities...................... 14
Description of the Subordinated Debentures................... 24
Description of the Guarantee................................. 31
Relationship Among the Preferred Securities, the Subordinated
Debentures and the Guarantee............................... 33
Certain Federal Income Tax Consequences...................... 34
ERISA Considerations......................................... 37
Underwriting................................................. 38
Validity of Securities....................................... 39
Experts...................................................... 39
Incorporation of Certain Documents by Reference.............. 39
Available Information........................................ 40
</TABLE>
------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, MVBI CAPITAL OR THE UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY CIRCUMSTANCES
IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
520,000 PREFERRED SECURITIES
MVBI CAPITAL TRUST
FLOATING RATE CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
MISSISSIPPI VALLEY
BANCSHARES, INC.
PARENT COMPANY OF
SOUTHWEST BANK
------------------
$13,000,000
FLOATING RATE
SUBORDINATED DEBENTURES
OF
MISSISSIPPI VALLEY
BANCSHARES, INC.
------------------
Prospectus
, 1997
------------------
STIFEL, NICOLAUS & COMPANY
INCORPORATED
- --------------------------------------------------------------------------------
<PAGE> 46
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with this offering are as set forth in
the following table:
<TABLE>
<S> <C>
SEC Registration Fee.................................................. $ 4,530
NASD Filing Fee....................................................... 1,995
Nasdaq Listing Fee.................................................... 2,990
Blue Sky Qualification Fees and Expenses.............................. <F*>
Accounting Fees and Expenses.......................................... <F*>
Legal Fees and Expenses............................................... <F*>
Trustees' Fees and Expenses........................................... <F*>
Printing and Engraving Expenses....................................... <F*>
Transfer and Registrar Fees........................................... <F*>
Miscellaneous......................................................... <F*>
---------
Total......................................................... $ 200,000
=========
<FN>
- --------
<F*>To be provided by pre-effective amendment.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Article Eleven of the Company's Restated Articles of Incorporation
provides as follows:
ARTICLE ELEVEN
A. Mandatory Indemnification of Directors and Officers.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of
the Corporation, by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest possible extent permitted by law, against all expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually
and reasonably incurred or suffered by him in connection with such action,
suit or proceeding.
B. Indemnification of Other Employees or Agents.
The Corporation may in its discretion, in specific cases, extend the
indemnification provided in Section A of this Article in full or in part to
any person who was or is a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was an employee or agent of
the Corporation other than a director or officer of the Corporation.
However, to the extent that any employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any such action,
suit or proceeding, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the action, suit or
proceeding.
C. Limitations on Indemnification.
No indemnity pursuant to this Article shall be paid by the Corporation:
(i) To the extent the director or officer is indemnified pursuant
to any policy of Directors and Officers Liability Insurance purchased
and maintained by the Corporation or otherwise;
II-1
<PAGE> 47
(ii) In respect to remuneration paid to a person otherwise entitled
to be indemnified hereunder if it shall be determined by a final
judgment or other final adjudication that such remuneration was in
violation of law;
(iii) On account of any suit in which judgment is rendered against a
person otherwise entitled to be indemnified hereunder for an accounting
of profits made from the purchase or sale by such person of securities
of the Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any Federal, state or local statutory law;
(iv) On account of conduct which is finally adjudged to have been
knowingly fraudulent, deliberately dishonest or wilful misconduct; or
(v) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
D. Defense of Claim.
(1) As a condition of any indemnification payable under this Article
(unless otherwise required by law), the Corporation shall be entitled to
participate in any such action, suit or proceeding at its own expense, and
except as otherwise provided below, to the extent that it may wish to do
so, the Corporation jointly with any other indemnifying parties will be
entitled to assume the defense thereof, with counsel satisfactory to the
person entitled to the indemnification (the "Indemnified Party"). After
notice from the Corporation to the Indemnified Party of its election so to
assume the defense thereof, the Corporation will not be liable to the
Indemnified Party under this Article for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnified Party shall have the right to
employ his counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnified Party unless (i) the employment of counsel by the Indemnified
Party has been authorized by the Corporation, (ii) the Indemnified Party
shall have reasonably concluded that there may be a conflict of interest
between the Corporation and the Indemnified Party in the conduct of the
defense of such action, or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of
any action, suit or proceeding brought by or on behalf of the Corporation
or as to which the director shall have made the conclusion provided for in
(ii) above.
(2) The Corporation shall not be liable to indemnify any person under
this Article for any amounts paid in settlement of any action or claim
effected without its written consent, or for any amounts paid in excess of
any proposed settlement with respect to which the Indemnified Party
prevents settlement by unreasonably withholding his consent.
E. Repayment of Expenses.
The payment by the Corporation of any expenses incurred in defending
any action, suit or proceeding in advance of the final disposition of the
action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the Indemnified Party to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation for such expenses as provided in this
Article.
F. Non-Exclusivity; Continuation.
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any statute, by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person. No amendment to these Articles shall
impair any right to indemnification which a person would otherwise have in
the absence of such amendment and which arises out of acts or omissions
occurring prior to such amendment.
II-2
<PAGE> 48
G. Insurance.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article.
H. Definitions.
(1) For the purpose of this Article, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger
as well as this Corporation, so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under
the provisions of this Article with respect to this Corporation as he would
if he had served this Corporation in the same capacity.
(2) For purposes of this Article, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
the term "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
(b) Article X of Company's By-Laws contains provisions substantially
identical to the foregoing provisions of Company's Restated Articles of
Incorporation.
(c) In addition to the provisions of the Restated Articles of Incorporation
and By-Laws of the Company, directors, officers, and controlling persons of the
Company may be indemnified by the Company pursuant to provisions of Section
351.355 of the Revised Statutes of Missouri, as amended.
(d) The Underwriting Agreement (Exhibit 1 hereto) provides for
indemnification by the Underwriters of the Company, each of its directors, each
of its officers who signed the Registration Statement and each person who
controls the Company within the meaning of the Securities Act of 1933, as
amended, from certain liabilities under the securities laws.
(e) In addition, the Company maintains officers' and directors' liability
insurance.
II-3
<PAGE> 49
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
4.2 Form of Subordinated Debenture (included as an exhibit to Exhibit 4.1).
4.3 Certificate of Trust of MVBI Capital dated as of February 14, 1997.
4.4 Trust Agreement of MVBI Capital dated as of February 14, 1997.
4.5 Form of Amended and Restated Trust Agreement of MVBI Capital.
4.6 Form of Preferred Security Certificate of MVBI Capital (included as an
exhibit to Exhibit 4.5).
4.7 Form of Preferred Securities Guarantee Agreement for MVBI Capital.
4.8 Form of Agreement as to Expenses and Liabilities (included as an exhibit
to Exhibit 4.5).
5.1<F*> Opinion of Armstrong, Teasdale, Schlafly & Davis as to the validity of
the issuance of the Subordinated Debentures.
5.2<F*> Opinion of Richards, Layton & Finger, special Delaware counsel, as to the
legality of the Preferred Securities to be issued by MVBI Capital.
8.1<F*> Opinion of Armstrong, Teasdale, Schlafly & Davis as to certain federal
income tax matters.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2<F*> Consent of Armstrong, Teasdale, Schlafly & Davis (to be included in their
opinions filed herewith as Exhibits 5.1 and 8.1).
23.3<F*> Consent of Richards, Layton & Finger (to be included in their opinion
filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
to act as trustee under Amended and Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
to act as trustee under the Preferred Securities Guarantee Agreement.
<FN>
- --------
<F*>To be filed by pre-effective amendment.
</TABLE>
(b) Financial Statement Schedules--Not applicable as all required
information is contained in the financial statements and the notes thereto or
in the selected financial data.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the provisions described under
"Item 15--Indemnification of Directors and Officers" above, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Company hereby undertakes that: (1) For purposes of determining any
liability under the Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and (2) For
the purpose of determining any liability under the Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-4
<PAGE> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in St. Louis, Missouri on February 19, 1997.
MISSISSIPPI VALLEY BANCSHARES, INC.
By: PAUL M. STRIEKER
-------------------------------
Paul M. Strieker
Executive Vice President,
Controller, Assistant Secretary
and Chief Financial Officer
Pursuant to the requirements of Securities Act of 1933, the undersigned
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in St. Louis, Missouri on February 19, 1997.
MVBI CAPITAL TRUST
By: LINN H. BEALKE
-------------------------------
Linn H. Bealke, Trustee
By: PAUL M. STRIEKER
-------------------------------
Paul M. Strieker, Trustee
By: CAROL DOLENZ
-------------------------------
Carol Dolenz, Trustee
II-5
<PAGE> 51
SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Andrew N. Baur and Linn H. Bealke and each of
them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
JOHN T. BAUMSTARK Director February 12, 1997
- ---------------------------------------
John T. Baumstark
ANDREW N. BAUR Chairman, Chief Executive Officer and February 12, 1997
- --------------------------------------- Director
Andrew N. Baur
LINN H. BEALKE President and Director February 12, 1997
- ---------------------------------------
Linn H. Bealke
ALICE C. BEHAN Director February 11, 1997
- ---------------------------------------
Alice C. Behan
WILLIAM H. T. BUSH Director February 12, 1997
- ---------------------------------------
William H. T. Bush
FRANKLIN J. CORNWELL JR. Director February 12, 1997
- ---------------------------------------
Franklin J. Cornwell Jr.
THEODORE P. DESLOGE, JR. Director February 12, 1997
- ---------------------------------------
Theodore P. Desloge, Jr.
LOUIS N. GOLDRING Director February 12, 1997
- ---------------------------------------
Louis N. Goldring
RICHARD T. GROTE Director February 12, 1997
- ---------------------------------------
Richard T. Grote
FREDERICK O. HANSER Director February 12, 1997
- ---------------------------------------
Frederick O. Hanser
II-6
<PAGE> 52
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
DONNA D. LAMBERT Director February 12, 1997
- ---------------------------------------
Donna D. Lambert
Director
- ---------------------------------------
Michael D. Latta
MONT S. LEVY Director February 12, 1997
- ---------------------------------------
Mont S. Levy
LEWIS B. SHEPLEY Director February 12, 1997
- ---------------------------------------
Lewis B. Shepley
PAUL M. STRIEKER Executive Vice President, Controller, February 13, 1997
- --------------------------------------- Assistant Secretary and Chief
Paul M. Strieker Financial Officer
</TABLE>
II-7
<PAGE> 53
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
4.2 Form of Subordinated Debenture (included as an exhibit to Exhibit 4.1).
4.3 Certificate of Trust of MVBI Capital dated as of February 14, 1997.
4.4 Trust Agreement of MVBI Capital dated as of February 14, 1997.
4.5 Form of Amended and Restated Trust Agreement of MVBI Capital.
4.6 Form of Preferred Security Certificate of MVBI Capital (included as an exhibit to Exhibit 4.5).
4.7 Form of Preferred Securities Guarantee Agreement for MVBI Capital.
4.8 Form of Agreement as to Expenses and Liabilities (included as an exhibit to Exhibit 4.5).
5.1<F*> Opinion of Armstrong, Teasdale, Schlafly & Davis as to the validity of the issuance of the Subordinated Debentures.
5.2<F*> Opinion of Richards, Layton & Finger, special Delaware counsel, as to the legality of the Preferred Securities to
be issued by MVBI Capital.
8.1<F*> Opinion of Armstrong, Teasdale, Schlafly & Davis as to certan federal income tax matters.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2<F*> Consent of Armstrong, Teasdale, Schlafly & Davis (to be included in their opinions filed herewith as Exhibits 5.1
and 8.1).
23.3<F*> Consent of Richards, Layton & Finger (to be included in their opinion filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act as trustee under Amended and
Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act as trustee under the Preferred
Securities Guarantee Agreement.
<FN>
- --------
<F*>To be filed by pre-effective amendment.
</TABLE>
II-8
<PAGE> 1
------------ Preferred Securities
MVBI CAPITAL TRUST
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount of $25.00 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
-----------------------, 1997
STIFEL, NICOLAUS & COMPANY, INCORPORATED
500 North Broadway
St. Louis, Missouri 63102
Dear Sirs:
Mississippi Valley Bancshares, Inc., a Missouri corporation
(the "Company"), and its financing subsidiary, MVBI Capital Trust,
a Delaware business trust (the "Trust," and hereinafter together
with the Company, the "Offerors"), propose that the Trust issue and
sell to Stifel, Nicolaus & Company, Incorporated (the
"Underwriter"), pursuant to the terms of this Agreement,
- ------------ of the Trust's Floating Rate Cumulative Trust
Preferred Securities, with a liquidation amount of $25.00 per
preferred security (the "Preferred Securities"), to be issued under
the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the Prospectus (as hereinafter
defined). The aforementioned ------------ Preferred Securities to
be sold to the Underwriter are herein called the "Firm Preferred
Securities." Solely for the purpose of covering over-allotments in
the sale of the Firm Preferred Securities, the Offerors further
propose that the Trust issue and sell to the Underwriter, at its
option, up to an additional ------------ Preferred Securities (the
"Option Preferred Securities") upon exercise of the over-allotment
option granted in Section 1 hereof. The Firm Preferred Securities
and any Option Preferred Securities are herein collectively
referred to as the "Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement with
the Underwriter in connection with the proposed purchase of the
Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
---------------------------------------------------
SECURITIES, DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
- ----------------------------------------------------------
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and
conditions herein set forth, the Offerors hereby agree that the
Trust shall issue and sell to the Underwriter and the Underwriter
agrees to purchase from the Trust, at a purchase price of $25.00
per share (the "Purchase Price"), ------------------ Preferred
Securities. Because the proceeds from the sale of the Firm
Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to the Underwriter a commission
of $------------ per Firm Preferred Security purchased (the "Firm
Preferred Securities Commission").
<PAGE> 2
In addition, on the basis of the representations, warranties
and agreements herein contained and subject to the terms and
conditions herein set forth, the Trust hereby grants to the
Underwriter an option (the "Option") to purchase all or any portion
of the ------------ Option Preferred Securities, and upon the
exercise of such Option in accordance with this Section 1, the
Offerors hereby agree that the Trust shall issue and sell to the
Underwriter all or any portion of the Option Preferred Securities
at the same Purchase Price per share paid for the Firm Preferred
Securities. Because the proceeds from the sale of the Option
Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriter a commission
of $------------ per Option Preferred Security for each Option
Preferred Security purchased (the "Option Preferred Securities
Commission"). The Option hereby granted shall expire 30 days after
the date upon which the Registration Statement (as hereinafter
defined) becomes effective and may be exercised only for the
purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Firm Preferred
Securities. The Option may be exercised in whole or in part at any
time (but not more than once) by the Underwriter giving notice
(confirmed in writing) to the Trust setting forth the number of
Option Preferred Securities as to which the Underwriter is
exercising the Option and the time, date and place for payment and
delivery of certificates for such Option Preferred Securities.
Such time and date of payment and delivery for the Option Preferred
Securities (the "Option Closing Date") shall be determined by the
Underwriter, but shall not be earlier than two nor later than five
full business days after the exercise of such Option, nor in any
event prior to the Closing Date (as hereinafter defined). The
Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred
Securities Commission and delivery of certificates for the Firm
Preferred Securities shall be made at the offices of the
Underwriter, 500 North Broadway, St. Louis, Missouri 63102, or such
other place as shall be agreed to by the Underwriter and the
Offerors, at 10:00 a.m., St. Louis time, on ------------, 1997, or
at such other time not more than five full business days thereafter
as the Offerors and the Underwriter shall determine (the "Closing
Date"). If the Underwriter exercises the option to purchase any or
all of the Option Preferred Securities, payment of the Purchase
Price and Option Preferred Securities Commission and delivery of
certificates for such Option Preferred Securities shall be made on
the Option Closing Date at the Underwriter's offices, or at such
other place as the Offerors and the Underwriter shall determine.
Such payments shall be made to an account designated by the Trust
by wire transfer or certified or bank cashier's check, in same day
funds, in the amount of the Purchase Price therefor, against
delivery by or on behalf of the Trust to the Underwriter for the
account of the Underwriter of certificates for the Designated
Preferred Securities to be purchased by the Underwriter.
The Agreement contained herein with respect to the timing of
the Closing Date and Option Closing Date is intended to, and does,
constitute an express agreement, as described in Rule 15c6-1(c) and
(d) promulgated under the 1934 Act (as defined herein), for a
settlement date other than three business days after the date of
the contract.
Certificates for Designated Preferred Securities to be
purchased by the Underwriter shall be delivered by the Offerors in
fully registered form in authorized denominations and registered in
such names as the Underwriter shall request in writing not less
than two business days prior to the Closing Date and, if
applicable, the Option Closing Date. Certificates for Designated
Preferred Securities to be purchased by the Underwriter shall be
made available by the Offerors to the Underwriter for inspection,
checking and packaging at such office as the Underwriter may
designate in writing not later than 1:00 p.m., St. Louis time, on
the last business day prior to the Closing Date and, if applicable,
on the last business day prior to the Option Closing Date.
2
<PAGE> 3
Time shall be of the essence, and delivery of the certificates
for the Designated Preferred Securities at the time and place
specified pursuant to this Agreement is a further condition of the
obligations of the Underwriter hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities pursuant to an Amended and Restated
Trust Agreement among State Street Bank and Trust Company, as
Property Trustee, Wilmington Trust Company, as Delaware Trustee,
the Administrative Trustees named therein (collectively, the
"Trustees"), and the Company, in substantially the form heretofore
delivered to the Underwriter, said Agreement being hereinafter
referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its Subordinated Debentures (the
"Debentures") pursuant to an Indenture between the Company and
State Street Bank and Trust Company, as Trustee (the "Indenture"),
and (ii) to guarantee certain payments on the Designated Preferred
Securities pursuant to a Guarantee Agreement between the Company
and State Street Bank and Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
------------------------------
(a) The Offerors jointly and severally represent and
warrant to, and agree with, the Underwriter that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under
the Securities Exchange Act of 1934, as amended (the "1934
Act") and the rules and regulations thereunder (the "1934 Act
Regulations") at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and
did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a Registration Statement on Form S-3 (File Numbers
333------------- and 333--------------01) for registration of
the issuance of the Designated Preferred Securities, the
Guarantee and $------------ aggregate principal amount of
Debentures under the Securities Act of 1933, as amended (the
"1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such Registration
Statement may have been so filed, in each case in conformity
in all material respects with the requirements of the 1933
Act, the rules and regulations promulgated thereunder (the
"1933 Act Regulations") and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration
statement, including any amendments thereto, any Preliminary
Prospectus (as defined herein) and the exhibits, financial
statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered by
the Offerors to the Underwriter. After the execution of this
Agreement, the Offerors will file with the Commission (A) if
such registration statement, as it may have been amended, has
been declared by the Commission to be effective under the 1933
Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by
Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by
the Underwriter prior to (or
3
<PAGE> 4
as are agreed to by the Underwriter subsequent to) the
execution of this Agreement, or (B) if such registration
statement, as it may have been amended, has not been declared
by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of
final prospectus, necessary to permit such registration
statement to become effective, a copy of which amendment has
been furnished to and not objected to by the Underwriter prior
to (or is agreed to by the Underwriter subsequent to) the
execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration
statement, as amended, if applicable, at the time when it was
or is declared effective under the 1933 Act, including (1) all
financial schedules and exhibits thereto, (2) all documents
(or portions thereof) incorporated by reference therein filed
under the 1934 Act, and (3) any information omitted therefrom
pursuant to Rule 430A and included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such
registration statement or any amendment thereto, including all
documents (or portions thereof) incorporated by reference
therein under the 1934 Act (including the prospectus subject
to completion, if any, included in the Registration Statement
and each prospectus filed pursuant to Rule 424(a) under the
1933 Act); and the term "Prospectus" means the prospectus
first filed with the Commission pursuant to Rule 424(b)(1) or
(4) or, if no prospectus is required to be filed pursuant to
Rule 424(b)(1) or (4), the prospectus included in the
Registration Statement, in each case including the financial
schedules and all documents (or portions thereof) incorporated
by reference therein under the 1934 Act. The date on which
the Registration Statement becomes effective is hereinafter
referred to as the "Effective Date."
(iii) The documents incorporated by reference in
any Preliminary Prospectus or Prospectus or from which
information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may
be, complied in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations, and when read
together and with the other information in any Preliminary
Prospectus or Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not,
as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus) has been issued by the Commission, nor
has the Commission, to the knowledge of the Offerors,
threatened to issue such an order or instituted proceedings
for that purpose. Any Preliminary Prospectus, at the time of
filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and
(B) did not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
-----------------
does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing
to the Offerors by the Underwriter expressly for inclusion in
the Prospectus beneath the heading "Underwriting" (such
information referred to herein as the "Underwriter's
Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and,
if applicable, the Option Closing Date, the Registration
Statement and any post-effective amendment thereto
(A) complied and will comply in all material respects
4
<PAGE> 5
with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act (and the rules and
regulations thereunder), and (B) did not and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, not misleading; provided,
---------
however, that this representation and warranty does not
-------
apply to the Underwriter's Information. At the Effective Date
and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated
Preferred Securities, including, without limitation, the
Closing Date and, if applicable, the Option Closing Date, the
Prospectus, as amended or supplemented, (A) complied and will
comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the Trust Indenture
Act (and the rules and regulations thereunder), and (B) did
not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation
-----------------
and warranty does not apply to the Underwriter's Information.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of
Missouri, with full corporate and other power and authority to
own, lease and operate its properties and conduct its business
as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence,
any Preliminary Prospectus) and as currently being conducted
and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good
standing under the Delaware Business Trust Act with the power
and authority (trust and other) to own its property and
conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common
securities (the "Common Securities") to the Company pursuant
to the Trust Agreement, to issue and sell the Designated
Preferred Securities, to enter into and perform its
obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated
by this Agreement and described in the Prospectus; the Trust
is not a party to or bound by any agreement or instrument
other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement
and described in the Prospectus; the Trust has no liabilities
or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust
Agreement and described in the Prospectus; the Trust is not a
party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the
Offerors, classified as an association taxable as a
corporation for United States federal income tax purposes; and
the Trust is, and as of the Closing Date or any Option Closing
Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(vii) The Company has ------- subsidiaries,
which are listed on Exhibit A attached hereto and incorporated
by reference herein (the "Subsidiaries"). The Company does
5
<PAGE> 6
not own or control, directly or indirectly, more than 5% of
any class of equity security of any corporation, association
or other entity other than the Subsidiaries. Each Subsidiary
is a corporation or bank duly organized or incorporated, as
the case may be, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation.
Each such Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and to
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus)
and as currently being conducted. The deposit accounts of
Southwest Bank of St. Louis (the "Bank") are insured by the
Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount
provided by law, and no proceedings for the modification,
termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries
is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction
in which it owns or leases property or conducts its business
so as to require such qualification and in which the failure
to so qualify would, individually or in the aggregate, have a
material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results
of operations of the Company and the Subsidiaries on a
consolidated basis. All of the issued and outstanding shares
of capital stock of the Subsidiaries (A) have been duly
authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C.
Section 1831o, and (C) except as disclosed in the Prospectus
(or, if the Prospectus is not in existence, any Preliminary
Prospectus), are directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer, preemptive rights, claim
or equity. Except as disclosed in the Prospectus, there are
no outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital
stock or equity securities of the Offerors or the
Subsidiaries.
(ix) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of each Offeror
have been duly authorized and validly issued and are fully
paid and nonassessable, and no such shares were issued in
violation of the preemptive or similar rights of any security
holder of an Offeror. No person has any preemptive or similar
right to purchase any shares of capital stock or equity
securities of the Offerors. Except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus), there are no outstanding rights,
options or warrants to acquire any securities of the Offerors,
and there are no outstanding securities convertible into or
exchangeable for any such securities and no restrictions upon
the voting or transfer of any capital stock of the Company or
equity securities of the Trust pursuant to the Company's
corporate charter or bylaws, the Trust Agreement or any
agreement or other instrument to which an Offeror is a party
or by which an Offeror is bound.
(x) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Designated Preferred
Securities in accordance with and upon the terms and
conditions set forth in this Agreement, the Trust Agreement,
the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus).
All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery of
6
<PAGE> 7
the Designated Preferred Securities in accordance with such
terms and conditions has been validly and sufficiently taken.
The Designated Preferred Securities, when delivered in
accordance with this Agreement, will be duly and validly
issued and outstanding, will represent valid fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to
any preemptive or similar rights, and will conform to the
description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to
delivery, will be subject to any security interest, lien,
mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated
and issued as provided in the Indenture and delivered to the
Trust pursuant to the Trust Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture and will conform to the description
thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered
to the guarantee trustee for the benefit of the Trust, will
constitute a valid and legally binding obligation of the
Company and will conform to the description thereof contained
in the Prospectus.
(D) The Agreement as to Expenses and
Liabilities to be entered into by the Company and the Trust
(the "Expense Agreement") has been duly authorized, and, when
duly and validly executed and delivered by the Company, will
constitute a valid and legally binding obligations of the
Company and will conform to the description thereof contained
in the Prospectus.
(xi) The Offerors and the Subsidiaries have complied
in all material respects with all federal, state and local
statutes, regulations, ordinances and rules applicable to the
ownership and operation of their properties or the conduct of
their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus)
and as currently being conducted, except in each case for any
such noncompliance which would not have a material adverse
effect on the condition (financial or otherwise), earnings
business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xii) The Offerors and the Subsidiaries have all
material permits, easements, consents, licenses, franchises
and other governmental and regulatory authorizations from all
appropriate federal, state, local or other public authorities
("Permits") as are necessary to own and lease their properties
and conduct their businesses in the manner described in and
contemplated by the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, any Preliminary
Prospectus) and as currently being conducted in all material
respects, except where the failure to obtain or possess any
Permit would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results
of operations of the Company and the Subsidiaries on a
consolidated basis. All such Permits are in full force and
effect and each of the Offerors and the Subsidiaries are in
all material respects complying therewith, and no event has
occurred that
7
<PAGE> 8
allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any
other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may
be adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus)
except where such revocation, termination or impairment would
not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings,
business, prospects, affairs, or results of operations of the
Company and the Subsidiaries on a consolidated basis. Such
Permits contain no restrictions that would materially impair
the ability of the Company or the Subsidiaries to conduct
their businesses in the manner consistent with their past
practices. Neither the Offerors nor any of the Subsidiaries
have received notice or otherwise has knowledge of any
proceeding or action relating to the revocation or
modification of any such Permit except where such revocation,
termination or impairment would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xiii) Neither of the Offerors nor any of the
Subsidiaries are in breach or violation of their corporate
charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) in any material
respect. Neither of the Offerors nor any of the Subsidiaries
is, and to the knowledge of the Offerors no other party is, in
violation, breach or default (with or without notice or lapse
of time or both) in the performance or observance of any term,
covenant, agreement, obligation, representation, warranty or
condition contained in (A) any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound, which such breach, violation or
default could have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis, and to the knowledge of
the Offerors, no other party has asserted that the Offerors or
any of the Subsidiaries is in such violation, breach or
default (provided that the foregoing shall not apply to
defaults by borrowers from the Bank), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material
adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a
consolidated basis.
(xiv) The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Guarantee, the Indenture, the Registration Statement and the
Prospectus (or, if the Prospectus in not in existence, any
Preliminary Prospectus) do not and will not conflict with,
result in the creation or imposition of any material lien,
claim, charge, encumbrance or restriction upon any property or
assets of the Offerors or the Subsidiaries or the Designated
Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without
notice or lapse of time or both, any of the terms, provisions
or conditions of the charter or by-laws of the Company or the
Subsidiaries, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise,
license, Permit or any other agreement or instrument to which
the Offerors or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or any
order, decree, judgment, rule or regulation of any
8
<PAGE> 9
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over
the Offerors or the Subsidiaries or any of their respective
properties which conflict, creation, imposition, breach,
violation or default would have either singly or in the
aggregate a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or
qualification with, any person (including, without limitation,
any court, governmental body or authority) is required in
connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee,
the Registration Statement and the Prospectus (or any
Preliminary Prospectus), except such as have been obtained
under the 1933 Act and the Trust Indenture Act and from The
Nasdaq Stock Market's National Market relating to the listing
of the Designated Preferred Securities, and such as may be
required under state securities laws or Interpretations or
Rules of the National Association of Securities Dealers, Inc.
("NASD") in connection with the purchase and distribution of
the Designated Preferred Securities by the Underwriter.
(xv) The Offerors have all requisite corporate power
and authority to enter into this Agreement and this Agreement
has been duly and validly authorized, executed and delivered
by the Offerors and constitutes the legal, valid and binding
agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except as the enforcement thereof
may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors'
rights generally and except as any indemnification or
contribution provisions thereof may be limited under
applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been
duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said
agreements will constitute a valid and legally binding
obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the
enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform to
the description thereof contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good
and marketable title in fee simple to all real property and
good title to all personal property owned by them and material
to their business, in each case free and clear of all security
interests, liens, mortgages, pledges, encumbrances,
restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is
not in existence, any Preliminary Prospectus) or such as do
not materially affect the value of such property in the
aggregate and do not materially interfere with the use made or
proposed to be made of such property; and all of the leases
under which the Company or the Subsidiaries hold real or
personal property are valid, existing and enforceable leases
and in full force and effect with such exceptions as are not
material and do not materially interfere with the use made or
proposed to be made of such real or personal property, and
neither the Company nor any of the Subsidiaries is in default
in any material respect of any of the terms or provisions of
any leases, except, in each case where the failure to so
possess or the existence of such default would not
individually or on the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis.
9
<PAGE> 10
(xvii) Ernst & Young LLP, who have certified
certain of the consolidated financial statements of the
Company and the Subsidiaries, including the notes thereto,
included in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company and
the Subsidiaries, as required by the 1933 Act and the 1933 Act
Regulations.
(xviii) The consolidated financial statements
including the notes thereto, incorporated in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus) with respect to the
Company and the Subsidiaries comply in all material respects
with the 1933 Act and the 1933 Act Regulations and present
fairly the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for
the periods specified and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis. The selected consolidated financial data
concerning the Offerors and the Subsidiaries included in the
Registration Statement and the Prospectus (or any Preliminary
Prospectus) comply in all material respects with the 1933 Act
and the 1933 Act Regulations, present fairly the information
set forth therein, and have been compiled on a basis
consistent with that of the consolidated financial statements
of the Offerors and the Subsidiaries in the Registration
Statement and the Prospectus (or any Preliminary Prospectus).
The other financial, statistical and numerical information
included in the Registration Statement and the Prospectus (or
any Preliminary Prospectus) comply in all material respects
with the 1933 Act and the 1933 Act Regulations, present fairly
the information shown therein, and to the extent applicable
have been compiled on a basis consistent with the consolidated
financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or
any Preliminary Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which is
material to the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the
Offerors and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects, affairs or results
of operations of the Offerors and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary
course of business;
(C) neither of the Offerors nor any of the
Subsidiaries have incurred any liabilities or obligations,
direct or contingent, or entered into any material
transactions, other than in the ordinary course of business
which is material to the condition (financial or otherwise),
earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis;
10
<PAGE> 11
(D) neither of the Offerors has declared or
paid any dividend other than the Company's regular dividends
on its common and preferred stock, and neither of the Offerors
nor any of the Subsidiaries has become delinquent in the
payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the
capital stock, equity securities, long-term debt, obligations
under capital leases or, other than in the ordinary course of
business, short-term borrowings of the Offerors or the
Subsidiaries.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus), no charge,
investigation, action, suit or proceeding is pending or, to
the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any
regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding
could have a material adverse effect on the consummation of
this Agreement or the transactions contemplated herein or the
condition (financial or otherwise), earnings, business,
prospects, affairs or results of operations of the Offerors
and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the
Prospectus (or any Preliminary Prospectus) and is not so
disclosed.
(xxi) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement
by the 1933 Act or the 1933 Act Regulations or the Trust
Indenture Act (or any rules or regulations thereunder) which
have not been filed as exhibits or incorporated by reference
to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken,
directly or indirectly, any action designed to result in or
which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price
of any security of the Offerors to facilitate the sale or
resale of the Designated Preferred Securities, and neither of
the Offerors is aware of any such action taken or to be taken
by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights,
trademarks, service marks, trade names and other rights
necessary to conduct the businesses now conducted by them in
all material respects or as described in the Prospectus (or,
if the Prospectus is not in existence, any Preliminary
Prospectus) and neither the Offerors nor the Subsidiaries have
received any notice of infringement or conflict with asserted
rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis
for any such infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus), no labor dispute involving the
Company or the
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<PAGE> 12
Subsidiaries exists or, to the knowledge of the
Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results
of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus). Neither the Company nor any of the
Subsidiaries have received notice of any existing or
threatened labor dispute by the employees of any of its
principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have
timely and properly prepared and filed all necessary federal,
state, local and foreign tax returns which are required to be
filed and have paid all taxes shown as due thereon and have
paid all other taxes and assessments to the extent that the
same shall have become due, except such as are being contested
in good faith or where the failure to so timely and properly
prepare and file would not have a material adverse effect on
the condition (financial or otherwise), earnings, business,
prospects, affairs or results of operations of the Offerors
and the Subsidiaries on a consolidated basis. The Offerors
have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors or the Subsidiaries
which, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements
and instruments described or referred to in the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus) and each contract,
agreement and instrument filed as an exhibit to the
Registration Statement is in full force and effect and is the
legal, valid and binding agreement of the Offerors or the
Subsidiaries, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally. Except as
disclosed in the Prospectus (or any Preliminary Prospectus),
to the knowledge of the Offerors, no other party to any such
agreement is (with or without notice or lapse of time or both)
in breach or default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists
between or among the Offerors or the Subsidiaries, on the one
hand, and the directors, officers, trustees, shareholders,
customers or suppliers of the Offerors or the Subsidiaries, on
the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus)
which is not adequately described therein.
(xxviii) No person has the right to request or
require the Offerors or the Subsidiaries to register any
securities for offering and sale under the 1933 Act by reason
of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated
Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus).
(xxix) The Designated Preferred Securities have
been approved for quotation on The Nasdaq Stock Market's
National Market subject to official notice of issuance.
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<PAGE> 13
(xxx) Except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus), there are no contractual encumbrances
or restrictions or material legal restrictions required to be
described therein, on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital
stock or to pay any indebtedness owed to the Company, (B) to
make any loans or advances to, or investments in, the Offerors
or (C) to transfer any of its property or assets to the
Offerors.
(xxxi) Neither of the Offerors is an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xxxii) The Offerors have not distributed and will
not distribute prior to the Closing Date any prospectus in
connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the
other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
---------------------------
Statement becomes effective or, if the Registration Statement is
already effective, after this Agreement becomes effective, the
Underwriter proposes to offer the Firm Preferred Securities for
sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling
terms, provided the proceeds to the Trust shall not be reduced as
a result of such reduction or change.
The Underwriter may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriter as the
Underwriter may elect to dealers chosen by it (the "Selected
Dealers") at the public offering price set forth in the Prospectus
less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the
public offering price. The Underwriter may allow, and Selected
Dealers may re-allow, a concession set forth in the Prospectus to
certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors
---------------------------------
jointly and severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not
effective at the time of execution of this Agreement, to become
effective as promptly as possible. If the Registration Statement
has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A,
then, the Offerors will prepare and file in accordance with Rule
430A and Rule 424(b) copies of the Prospectus or, if required by
Rule 430A, a post-effective amendment to the Registration Statement
(including the Prospectus) containing all information so omitted
and will provide evidence satisfactory to the Underwriter of such
timely filing.
(b) The Offerors shall notify the Underwriter
immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the
Prospectus or any amended Prospectus has been filed;
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<PAGE> 14
(ii) of the receipt of any comments or requests from
the Commission;
(iii) of any request of the Commission to amend
or supplement the Registration Statement, any Preliminary
Prospectus or the Prospectus or for additional information;
and
(iv) of the issuance by the Commission or any state
or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, or suspending the qualification of any of
the Designated Preferred Securities for offering or sale in
any jurisdiction or the institution or threat of institution
of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any
such stop order or of any other such order and if any such
order is issued, to cause such order to be withdrawn or lifted
as soon as possible.
(c) The Offerors shall furnish to the Underwriter, from
time to time without charge, as soon as available, as many copies
as the Underwriter may reasonably request of (i) the registration
statement as originally filed and of all amendments thereto, in
executed form, including exhibits, whether filed before or after
the Registration Statement becomes effective, (ii) all exhibits and
documents incorporated therein or filed therewith, (iii) all
consents and certificates of experts in executed form, (iv) any
Preliminary Prospectus and all amendments and supplements thereto,
and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Offerors shall comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution
of the Designated Preferred Securities as contemplated herein and
in the Trust Agreement and the Prospectus. The Offerors shall not
file any amendment to the registration statement as originally
filed or to the Registration Statement and shall not file any
amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus of which the
Underwriter shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings
thereof or to which the Underwriter or the Underwriter's counsel
shall object. If it is necessary, in the Offerors' reasonable
opinion or in the reasonable opinion of the Offerors' counsel to
amend or supplement the Registration Statement or the Prospectus in
connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the
Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided the Underwriter
or the Underwriter's counsel does not object), and furnishing to
the Underwriter such number of copies as the Underwriter may
reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the
Prospectus, as the case may be (in form and substance reasonably
satisfactory to the Underwriter and the Underwriter's counsel). If
any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus to correct an untrue statement of a
material fact or to include a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it is necessary at
any time to amend or supplement the Prospectus to comply with the
1933 Act and the 1933 Act Regulations, the Offerors shall, subject
to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the
Commission, and furnishing to the Underwriter, such number of
copies as the Underwriter may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to the Underwriter and the
Underwriter's counsel) so that,
14
<PAGE> 15
as so amended or supplemented, the Prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) The Offerors shall cooperate with the Underwriter
and the Underwriter's counsel in order to qualify the Designated
Preferred Securities for offering and sale under the securities or
blue sky laws of such jurisdictions as the Underwriter may
reasonably request and shall continue such qualifications in effect
so long as may be advisable for distribution of the Designated
Preferred Securities; provided, however, that the Offerors shall
not be required to qualify to do business as a foreign corporation
or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such
statements and reports as may be required by the laws of each
jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify the Underwriter
immediately of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities or threat
thereof in any jurisdiction.
(f) The Offerors shall make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933
Act Regulations and furnish to the Underwriter as soon as
practicable, but in any event not later than 16 months after the
Effective Date, a consolidated earnings statement of the Offerors
conforming with the requirements of Section 11(a) of the 1933 Act
and Rule 158.
(g) The Offerors shall use the proceeds from the sale of
the Designated Preferred Securities to be sold by the Trust
hereunder in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors
shall furnish to the Underwriter copies of all reports and
communications (financial or otherwise) furnished by the Offerors
to the holders of the Designated Preferred Securities as a class,
copies of all reports and financial statements filed with or
furnished to the Commission (other than portions for which
confidential treatment has been obtained from the Commission) or
with any national securities exchange or The Nasdaq Stock Market's
National Market and such other documents, reports and information
concerning the business and financial conditions of the Offerors as
the Underwriter may reasonably request, other than such documents,
reports and information for which the Offerors has the legal
obligation not to reveal to the Underwriter.
(i) For a period of 30 days from the Effective Date, the
Offerors shall not, directly or indirectly, offer for sale, sell or
agree to sell or otherwise dispose of any Designated Preferred
Securities other than pursuant to this Agreement, any other
beneficial interests in the assets of the Trust or any securities
of the Trust or the Company that are substantially similar to the
Designated Preferred Securities, including any guarantee of such
beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially
similar securities, without the prior written consent of the
Underwriter.
(j) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become quoted on The Nasdaq
Stock Market's National Market, or in lieu thereof a national
securities exchange, and to remain so quoted for at least five
years from the Effective Date or for such shorter period as may be
specified in a written consent of the Underwriter, provided this
shall not prevent the Company from redeeming the Designated
Preferred Securities pursuant to the terms of the Trust
15
<PAGE> 16
Agreement. If the Designated Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the
Debentures promptly listed on The Nasdaq Stock Market's National
Market or other organization on which the Designated Preferred
Securities are then listed, and to have the Debentures promptly
registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on
which the Underwriter's Option to purchase the Option Preferred
Securities shall expire, or (ii) the day following the Option
Closing Date with respect to any Option Preferred Securities that
the Underwriter shall elect to purchase, except as described in or
contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any
action) which will result in the Offerors or the Subsidiaries
incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the
ordinary course of business, and there will not be any material
change in the financial position, capital stock, or any material
increase in long-term debt, obligations under capital leases or
short-term borrowings of the Offerors and the Subsidiaries on a
consolidated basis.
(l) The Offerors shall not, for a period of 180 days
after the date hereof, without the prior written consent of the
Underwriter, purchase, redeem or call for redemption, or prepay or
give notice of prepayment (or announce any redemption or call for
redemption, any repayment or notice of prepayment) of any of the
Offerors' securities.
(m) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to
facilitate the sale or resale of the Designated Preferred
Securities and the Offerors are not aware of any such action taken
or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press release
or other communication directly or indirectly or hold any press
conference with respect to the Offerors, the Subsidiaries or the
offering of the Designated Preferred Securities (the "Offering")
without the prior written consent of the Underwriter.
5. PAYMENT OF EXPENSES. Whether or not this Agreement
-------------------
is terminated or the sale of the Designated Preferred Securities to
the Underwriter is consummated, the Company covenants and agrees
that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, any Preliminary
Prospectus or Prospectuses, the Registration Statement and the
Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected
dealers agreements), the certificates for the Designated Preferred
Securities and the Preliminary and Final Blue Sky Memoranda and any
legal investment surveys and any supplements thereto;
(b) all fees, expenses and disbursements of the
Offerors' counsel and accountants;
(c) all fees and expenses incurred in connection with
the qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of
16
<PAGE> 17
such jurisdictions as the Underwriter may request, including all
filing fees and fees and disbursements of counsel for the
Underwriter in connection therewith, including, without limitation,
in connection with the preparation of the Preliminary and Final
Blue Sky Memoranda and any legal investment surveys and any
supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred Securities
and, if applicable, the Guarantee and the Debentures on The Nasdaq
Stock Market's National Market;
(f) the cost of furnishing to the Underwriter copies of
the initial registration statements, any Preliminary Prospectus,
the Registration Statement and the Prospectus and all amendments or
supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel for any
transfer agent or registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and
delivery of the Designated Preferred Securities to the Underwriter;
(i) all expenses incident to the preparation, execution
and delivery of the Trust Agreement, the Indenture, the Guarantee
and the Expense Agreement; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under
the Trust Agreement that are not otherwise specifically provided
for in this Section 5.
If the sale of Designated Preferred Securities contemplated by
this Agreement is not completed due to termination pursuant to the
terms hereof, the Company will pay the Underwriter its accountable
out-of-pocket expenses in connection herewith or in contemplation
of the performance of its obligations hereunder, including without
limitation travel expenses, reasonable fees, expenses and
disbursements of counsel or other out-of-pocket expenses incurred
by the Underwriter in connection with any discussion of the
Offering or the contents of the Registration Statement, any
investigation of the Offerors and the Subsidiaries, or any
preparation for the marketing, purchase, sale or delivery of the
Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by
this Agreement is completed, the Company shall not be responsible
for payment of fees or disbursements of counsel or the Underwriter
other than in accordance with paragraph (c) above, or for the
reimbursement of any expenses of the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
-------------------------------------------
obligations of the Underwriter to purchase and pay for the Firm
Preferred Securities and, following exercise of the Option granted
by the Offerors in Section 1 of this Agreement, the Option
Preferred Securities, are subject, in the Underwriter's sole
discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors
herein as of the date hereof and as of the Closing Date (or in the
case of the Option Preferred Securities, if any, as of the Option
Closing Date), to the accuracy of the written statements of
17
<PAGE> 18
the Offerors made pursuant to the provisions hereof, to the performance
by the Offerors of their covenants and obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared
effective prior to the time of execution hereof, the Registration
Statement shall become effective not later than 10:00 a.m.,
St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as the
Underwriter may agree to in writing. If required, the Prospectus
and any amendment or supplement thereto shall have been timely
filed in accordance with Rule 424(b) and Rule 430A under the 1933
Act and Section 4(a) hereof. No stop order suspending the
effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any
applicable state securities laws and no proceedings for that
purpose shall have been instituted or shall be pending, or, to the
knowledge of the Offerors or the Underwriter, shall be contemplated
by the Commission or any state authority. Any request on the part
of the Commission or any state authority for additional information
(to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to the Underwriter and
complied with to the satisfaction of the Underwriter and counsel
for the Underwriter.
(b) The Underwriter shall not have advised the Company
at or before the Closing Date (and, if applicable, the Option
Closing Date) that the Registration Statement or any post-effective
amendment thereto, or the Prospectus or any amendment or supplement
thereto, contains an untrue statement of a fact which, in the
Underwriter's opinion, is material or omits to state a fact which,
in the Underwriter's opinion, is material and is required to be
stated therein or is necessary to make statements therein (in the
case of the Prospectus or any amendment or supplement thereto, in
light of the circumstances under which they were made) not
misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Trust Agreement, and the Designated Preferred Securities, and
the authorization and form of the Registration Statement and
Prospectus, other than financial statements and other financial
data, and all other legal matters relating to this Agreement and
the transactions contemplated hereby or by the Trust Agreement
shall be satisfactory in all material respects to counsel for the
Underwriter, and the Offerors and the Subsidiaries shall have
furnished to such counsel all documents and information relating
thereto that they may reasonably request to enable them to pass
upon such matters.
(d) Armstrong, Teasdale, Schlafly & Davis, counsel for
the Offerors, shall have furnished to the Underwriter their signed
opinion, dated the Closing Date or the Option Closing Date, as the
case may be, in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Missouri, and is duly registered as a bank holding
company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Each of the
Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus and
is currently conducted in all material respects. All
outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 1831 and, to the best of
such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding rights, options or
18
<PAGE> 19
warrants to purchase any such shares or securities convertible
into or exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee of
the Company and the equity securities of the Trust conform to
the description thereof contained in the Prospectus in all
material respects. The capital stock of the Company
authorized and issued as of December 31, 1996 is as set forth
under the caption "Capitalization" in the Prospectus, has been
duly authorized and validly issued, and is fully paid and non-
assessable. To the best of such counsel's knowledge, there
are no outstanding rights, options or warrants to purchase, no
other outstanding securities convertible into or exchangeable
for, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or equity securities of
the Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement, the Trust
Agreement and the Indenture have been duly authorized by all
necessary actions of the Offerors. All of the Designated
Preferred Securities have been duly and validly authorized
and, when delivered in accordance with this Agreement will be
duly and validly issued, fully paid and nonassessable, and
will conform to the description thereof in the Registration
Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for
quotation on The Nasdaq Stock Market's National Market subject
to official notice of issuance. There are no preemptive or
other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus no restrictions upon the voting
or transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, by-laws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to the best of such
counsel's knowledge, any agreement or other instrument to
which either Offeror or any of the Subsidiaries is a party or
by which either Offeror or any of the Subsidiaries may be
bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations under
this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding obligations of the
Offerors enforceable in accordance with its terms, except as
the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be
limited under applicable laws and certain remedies may not be
available in the case of a nonmaterial breach.
(v) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and
of general principles of equity.
(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are
entitled to the benefits of the Indenture and are legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their
19
<PAGE> 20
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles
of equity.
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general principles
of equity.
(viii) To the best of such counsel's knowledge,
neither of the Offerors nor any of the Subsidiaries is in
breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter,
by-laws or governing document (including without limitation,
the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated by this Agreement, and the Trust Agreement do not
and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the
Subsidiaries or the Designated Preferred Securities pursuant
to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or
lapse of time or both, any of the terms, provisions or
conditions of the charter, by-laws or governing document
(including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to the best of such counsel's
knowledge, any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either
Offeror or the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or
regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties which,
in each case, is material to the Offerors and the Subsidiaries
on a consolidated basis. No authorization, approval, consent
or order of, or filing, registration or qualification with,
any person (including, without limitation, any court,
governmental body or authority) is required under Missouri law
in connection with the transactions contemplated by this
Agreement in connection with the purchase and distribution of
the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge holders
of securities of the Offerors either do not have any right
that, if exercised, would require the Offerors to cause such
securities to be included in the Registration Statement or
have waived such right. To the best of such counsel's
knowledge, neither the Offerors nor any of the Subsidiaries is
a party to any agreement or other instrument which grants
rights for or relating to the registration of any securities
of the Offerors.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, (i) no action, suit or proceeding at law or in
equity is pending or threatened in writing to which the
Offerors or the Subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened in writing
against or affecting the Offerors or the Subsidiaries or any
of their properties, before or by any court or governmental
official, commission, board or other administrative agency,
authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to
have a
20
<PAGE> 21
material adverse effect on the consummation of this Agreement
or the issuance and sale of the Designated Preferred
Securities as contemplated herein or the condition (financial
or otherwise), earnings, business, or results of operations of
the Offerors and the Subsidiaries on a consolidated basis or
which is required to be disclosed in the Registration
Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of
or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body
or authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus, except such as have
been obtained under the 1933 Act and the Trust Indenture Act,
and except such as may be required under state securities laws
or Interpretations or Rules of the NASD in connection with the
purchase and distribution of the Designated Preferred
Securities by the Underwriter.
(xii) The Registration Statement and the
Prospectus and any amendments or supplements thereto (other
than the financial statements or other financial data included
therein or omitted therefrom and Underwriter's Information, as
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations as of their respective
dates of effectiveness or issuance. The documents
incorporated by reference in the Registration Statement and
the Prospectus and any amendments or supplements thereto
(other than the financial statements or other financial data
included therein or omitted therefrom and Underwriter's
Information, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations as
of their respective dates of filing.
(xiii) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other documents
of a character required to be disclosed in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not so disclosed or filed.
(xiv) The statements under the captions
"Description of the Preferred Securities," "Description of the
Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated
Debentures and the Guarantee," "Certain Federal Income Tax
Consequences," and "ERISA Considerations" in the Prospectus,
insofar as such statements constitute a summary of legal and
regulatory matters, documents or instruments referred to
therein are accurate descriptions of the matters summarized
therein in all material respects and fairly present the
information called for with respect to such legal matters,
documents and instruments, other than financial and
statistical data as to which said counsel expresses no opinion
or belief.
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made within the
time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for a stop order are pending or threatened
by the Commission.
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<PAGE> 22
(xvi) Except as described in or contemplated by
the Prospectus, to the best of such counsel's knowledge, there
are no contractual encumbrances or restrictions, or material
legal restrictions required to be described therein on the
ability of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay
indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge,
(A) the business and operations of the Offerors and the
Subsidiaries comply in all material respects with all
statutes, ordinances, laws, rules and regulations applicable
thereto and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair the
ability of the Offerors and the Subsidiaries to conduct their
business; and (B) the Offerors and the Subsidiaries possess
and are operating in all material respects in compliance with
the terms, provisions and conditions of all permits, consents,
licenses, franchises and governmental and regulatory
authorizations ("Permits") and required to conduct their
businesses as described in the Prospectus and which are
material to the Offerors and the Subsidiaries on a
consolidated basis, except in those instances where the loss
thereof or non-compliance therewith would not have a material
adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis; to the best of such counsel's knowledge,
all such Permits are valid and in full force and effect, and,
to the best of such counsel's knowledge, no action, suit or
proceeding is pending or threatened which may lead to the
revocation, termination, suspension or non-renewal of any such
Permit, except in those instances where the loss thereof or
non-compliance therewith would not materially impair the
ability of the Offerors or the Subsidiaries to conduct their
businesses.
In giving the above opinion, such counsel may state that,
insofar as such opinion involves factual matters, they have relied
upon certificates of officers of the Offerors including, without
limitation, certificates as to the identity of any and all material
contracts, indentures, mortgages, deeds of trust, loans or credit
agreements, notes, leases, franchises, licenses or other agreements
or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for
purposes of paragraphs (viii), (xiii) and (xvii) hereof, and
certificates of public officials. In addition, it is contemplated
that such counsel in giving the above opinion shall rely on the
opinion of Richards, Layton & Finger, special Delaware counsel to
the Offerors as to certain matters relating to the Trust and the
Designated Preferred Securities which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such
counsel has participated in conferences with officers and
representatives of the Offerors and with their independent public
accountants and with the Underwriter and the Underwriter's counsel,
at which conferences such counsel made inquiries of such officers,
representatives and accountants and discussed in detail the
contents of the Registration Statement and Prospectus (without
taking further action to verify independently the statements made
in the Registration Statement and the Prospectus, and without
assuming responsibility for the accuracy or completeness of such
statements, except to the extent expressly provided above) and such
counsel has no reason to believe (A) that the Registration
Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data included
therein or omitted therefrom or Underwriter's Information, as to
which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective,
contained any untrue statement of a material fact or omitted to
state any material fact required
22
<PAGE> 23
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading or (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or
Underwriter's Information, as to which such counsel need express no
opinion), at the time the Registration Statement became effective (or,
if the term "Prospectus" refers to the prospectus first filed pursuant
to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented
Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of
a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading or (C) that there is any amendment to the
Registration Statement required to be filed that has not already
been filed.
(e) Richards, Layton & Finger, special Delaware counsel
to the Offerors, shall have furnished to the Underwriter their
signed opinion, dated as of Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to
such counsel, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act and, under the Trust Agreement and
the Delaware Business Trust Act, has the trust power and
authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and
binding agreement of the Company and the Trustees, and is
enforceable against the Company and the Trustees, in
accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Trust, and the performance by
the Trust of its obligations thereunder, have been authorized
by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and
sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and nonassessable
beneficial interest in the assets of the Trust and entitled to
the benefits of the Trust Agreement. The form of certificates
to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and
complies with all material requirements of the Delaware
Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to shareholders of
private, for-profit corporations organized under the General
Corporation Law of the State of Delaware. Such opinion may
note that the holders of Designated Preferred Securities may
be obligated to make payments as set forth in the Trust
Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
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<PAGE> 24
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this
Agreement, and the consummation of the transactions
contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or
regulation.
Such opinion may state that it is limited to the laws of the
State of Delaware and that the opinion expressed in paragraph (ii)
above is subject to the effect upon the Trust Agreement of
(i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and
(iii) the effect of applicable public policy on the enforceability
of provisions relating to indemnification or contribution.
(f) Lewis, Rice & Fingersh, L.C., counsel for the
Underwriter, shall have furnished the Underwriter their signed
opinion, dated the Closing Date or the Option Closing Date, as the
case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as the
Underwriter may reasonably request and there shall have been
furnished to such counsel such documents and other information as
they may request to enable them to pass on such matters. In giving
such opinion, Lewis, Rice & Fingersh, L.C. may rely as to matters
of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to
matters of law, other than law of the United States and the State
of Missouri, and upon the opinions of Armstrong, Teasdale, Schlafly
& Davis and Richards, Layton & Finger described herein.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, any Option Closing Date), the Underwriter
shall have received from Ernst & Young LLP, a letter, dated the
date of this Agreement and the Closing Date (and, if applicable,
the Option Closing Date), respectively, in form and substance
satisfactory to the Underwriter, confirming that they are
independent public accountants with respect to Company, within the
meaning of the 1933 Act and the 1933 Act Regulations, and stating
in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act, the 1934 Act, the 1933 Act Regulations and the 1934
Act Regulations.
(ii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, consisting of a reading of the
latest available unaudited condensed consolidated financial
statements of the Company, inspection of the minute books of
the Company since the date of the latest audited financial
statements of the Company included in the Registration
Statement, inquiries of officials of the Company responsible
for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have been
any changes in the consolidated capital stock of the
Company, any increase in the consolidated debt of the
Company, any decreases in consolidated total assets or
shareholders equity of the Company, or any increases or
24
<PAGE> 25
decreases in the allowance for loan losses, total loans
or investment securities of the Company, in each case as
compared with amounts shown in the latest audited
consolidated statement of financial condition of the
Company included in the Registration Statement except in
each case for changes, increases or decreases which the
Registration Statement specifically discloses, have
occurred or may occur or which are described in such
letter; and
(B) for the period from the date of the
latest audited consolidated financial statements included
in the Registration Statement to the specified date
referred to in Clause (iii)(A), there were any decreases in
the consolidated interest income, net interest income or
net income of the Company or in the per share amount of net
income of the Company, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by the
Underwriter, except in each case for increases or
decreases which the Registration Statement discloses have
occurred or may occur, or which are described in such
letter.
(iii) In addition to the audit referred to in
their report included in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (ii) above, they
have carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to all amounts,
percentages and financial information which are derived from
the general accounting records and consolidated financial
statements of the Company which appear in the Registration
Statement or are incorporated by reference therein, and have
compared such amounts, percentages and financial information
with the accounting records and the material derived from such
records and consolidated financial statements of the Company
and have found them to be in agreement.
In the event that the letter to be delivered on the date
hereof, on the Closing Date and, if applicable, the Option Closing
Date referred to above set forth any such changes, decreases or
increases as specified in Clauses (ii)(A) or (ii)(B) above, or any
exceptions from such agreement specified in Clause (iii) above, it
shall be a further condition to the Underwriter's obligations that
it shall have determined, after discussions with officers of the
Company responsible for financial and accounting matters, that such
changes, decreases, increases or exceptions as are set forth in
such letters do not (x) reflect a material adverse change in the
items specified in Clause (iii)(A) above as compared with the
amounts shown in the latest audited consolidated statement of
financial condition of the Company included in the Registration
Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the
corresponding periods of the prior year or other period specified
by the Underwriter, or (z) reflect a material change in items
specified in Clause (iii) above from the amounts shown in any
Preliminary Prospectus distributed by the Underwriter in connection
with the offering contemplated hereby or from the amounts shown in
the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received certificates of
the chief executive officer and the chief financial and accounting
officer of the Company, which certificates shall be deemed to be
made on behalf of the Company dated as of the Closing Date and, if
applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations
and warranties of the Company set forth in Section 2(a) hereof are
accurate as of the Closing Date and, if applicable, the Option
Closing Date, and that the Offerors have complied with all
agreements and satisfied all conditions on their part to be
25
<PAGE> 26
performed or satisfied at or prior to such Closing Date; (ii) since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of
the Company and the Subsidiaries on a consolidated basis;
(iii) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not
been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of
business; (iv) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and nothing
has come to their attention that would lead them to believe that
either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or
issue dates, contained, and the Prospectus as amended or
supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
(v) covering such other matters as the Underwriter may reasonably
request. The officers' certificate of the Company shall further
state that no stop order affecting the Registration Statement is in
effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received a certificate of
an authorized representative of the Trust to the effect that to the
best of his or her knowledge based upon a reasonable investigation,
the representations and warranties of the Trust in this Agreement
are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has
complied with all the agreements and satisfied all the conditions
required by this Agreement to be performed or satisfied by the
Trust on or prior to the Closing Date, and since the most recent
date as of which information is given in the Prospectus, except as
contemplated by the Prospectus, the Trust has not incurred any
material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary course
of business and there has not been any material adverse change in
the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, the Underwriter shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee, the Indenture and the Expense Agreement.
(k) The NASD, upon review of the terms of the public
offering of the Designated Preferred Securities, shall not have
objected to the Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to the
Underwriter and counsel for the Underwriter all such other
documents, certificates and opinions as such parties shall have
reasonably requested.
All opinions, certificates, letters and other documents shall
be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to the Underwriter.
The Offerors shall furnish the Underwriter with conformed copies of
such opinions, certificates, letters and other documents as the
Underwriter shall reasonably request.
If any of the conditions referred to in this Section 6 shall
not have been fulfilled when and as required by this Agreement,
this Agreement and all of the Underwriter's obligations hereunder
may be terminated by the Underwriter on notice to the Company at,
or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of
the Underwriter to the Offerors.
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<PAGE> 27
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Offerors agree to jointly and severally
indemnify and hold harmless the Underwriter, each of its directors,
officers and agents, and each person, if any, who controls the
Underwriter within the meaning of the 1933 Act, against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based (i) upon any
untrue statement or alleged untrue statement of a material fact
made by the Company or the Trust contained in Section 2 of this
Agreement (or any certificate delivered by the Company or the Trust
pursuant to Sections 6(h), 6(i) or 6(l) hereto) or the registration
statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, (ii) upon any blue sky application or other
document executed by the Company or the Trust specifically for that
purpose or based upon written information furnished by the Company
or the Trust filed in any state or other jurisdiction in order to
qualify any of the Designated Preferred Securities under the
securities laws thereof (any such application, document or
information being hereinafter referred to as a "Blue Sky
Application"), (iii) any omission or alleged omission to state a
material fact in the registration statement as originally filed or
the Registration Statement, any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or in any
Blue Sky Application required to be stated therein or necessary to
make the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment of
supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or (iv) the enforcement of this indemnification
provision or the contribution provisions of Section 7(d); and shall
reimburse each such indemnified party for any reasonable legal or
other expenses as incurred, but in no event less frequently than
30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as
a third-party witness in connection with any such loss, claim,
damage, liability or action, notwithstanding the possibility that
payments for such expenses might later be held to be improper, in
which case such payments shall be promptly refunded; provided,
--------
however, that the Offerors shall not be liable in any such case
- -------
to the extent, but only to the extent, that any such losses,
claims, damages, liabilities and expenses arise out of or are based
upon any untrue statement or omission or allegation thereof that
has been made therein or omitted therefrom in reliance upon and in
conformity with the Underwriter's Information; provided, that
--------
the indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses
directly results from the fact that such Underwriter sold
Designated Preferred Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (as amended or supplemented if any
amendments or supplements thereto shall have been furnished to the
Underwriter in sufficient time to distribute same with or prior to
the written confirmation of the sale involved), if required by law,
and if such loss, claim, damage, liability or expense would not
have arisen but for the failure to give or send such person such
document. The foregoing indemnity agreement is in addition to any
liability the Company or the Trust may otherwise have to any such
indemnified party.
(b) The Underwriter agrees to indemnify and hold
harmless each Offeror, each of its directors, each of its officers
who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of the 1933 Act, to the same
extent as required by the foregoing
27
<PAGE> 28
indemnity from the Company to the Underwriter, but only with respect to the
Underwriter's Information. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an
indemnified party in respect of which indemnity may be sought from
the indemnifying party, such indemnified party or controlling
person shall promptly notify the indemnifying party in writing, and
the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all expenses; provided,
--------
however, that the failure so to notify the indemnifying party
- -------
shall not relieve it from any liability which it may have to an
indemnified party otherwise than under such paragraph, and further,
shall only relieve it from liability under such paragraph to the
extent prejudiced thereby. Any indemnified party or any such
controlling person shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of
such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) the indemnifying party has
failed to assume the defense or to employ counsel reasonably
satisfactory to the indemnified party, or (iii) the named parties
to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the
indemnifying party and such indemnified party or such controlling
person shall have been advised by such counsel that there may be
one or more legal defenses available to it that are different from
or in addition to those available to the indemnifying party (in
which case, if such indemnified party or controlling person
notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be
designated in writing by the indemnified party. Each indemnified
party and each controlling person, as a condition of such
indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The
indemnifying party shall not be liable for any settlement of any
such action effected without its written consent, but if there
shall be a final judgment for the plaintiff in any such action, the
indemnifying party shall indemnify and hold harmless any
indemnified party and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnity may be
sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of
the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of
each such indemnified party reasonably satisfactory to each such
indemnified party and each such controlling person from all
liability arising out of such claim, action, suit or proceeding or
unless the indemnifying party shall confirm in a written agreement
with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall
not alter the right of any indemnified party or controlling person
to indemnification or contribution as provided in this Agreement.
28
<PAGE> 29
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an
indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Offerors on the one hand and the Underwriter on the
other from the offering of the Designated Preferred Securities, or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors on the one hand
and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on
the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
of the Designated Preferred Securities (before deducting expenses)
received by the Offerors bear to the total underwriting discounts,
commissions and compensation received by the Underwriter, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Offerors on the one hand and of the
Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Offerors or by
the Underwriter and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The Offerors and the Underwriter agree that
it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in the first sentence
of this paragraph (d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), the Underwriter shall not be
required to contribute any amount in excess of the amount by which
the total price at which the Designated Preferred Securities
underwritten by the Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this paragraph (d), each person who controls
the Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person
who controls an Offeror within the meaning of the 1933 Act, each
officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have
the same rights to contribution as the Offerors subject in each
case to the preceding sentence. The obligations of the Offerors
under this paragraph (d) shall be in addition to any liability
which the Offerors may otherwise have and the obligations of the
Underwriter under this paragraph (d) shall be in addition to any
liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the
Offerors set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by
or on behalf of the Underwriter or any person controlling the
Underwriter or by or on behalf of the Offerors, or such directors,
trustees or
29
<PAGE> 30
officers (or any person controlling an Offeror), (ii) acceptance of any
Designated Preferred Securities and payment therefor hereunder and (iii)
any termination of this Agreement. A successor of the Underwriter or of an
Offeror, such directors, trustees or officers (or of any person controlling
the Underwriter or an Offeror) shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may become
due from the Trust under this Section 7.
8. TERMINATION. The Underwriter shall have the right to
-----------
terminate this Agreement at any time at or prior to the Closing
Date or, with respect to the Underwriter's obligation to purchase
the Option Preferred Securities, at any time at or prior to the
Option Closing Date, without liability on the part of the
Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under
this Agreement, or any of the conditions referred to in Section 6
shall not have been fulfilled, when and as required by this
Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree which in the judgment of the Underwriter
materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of
which information is given in the Registration Statement or the
Prospectus, any materially adverse change in, or any development
which is reasonably likely to have a material adverse effect on,
the condition (financial or otherwise), earnings, business,
prospects, affairs or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the
effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's reasonable judgment,
impracticable to market the Designated Preferred Securities or
enforce contracts for the sale of the Designated Preferred
Securities;
(e) Trading generally on the New York Stock Exchange,
the American Stock Exchange or The Nasdaq Stock Market's National
Market shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental
authority; or
(f) A banking moratorium shall have been declared by
either federal or Missouri authorities; or
(g) Any action shall have been taken by any government
in respect of its monetary affairs which, in the Underwriter's
reasonable judgment, has a material adverse effect on the United
States securities markets.
30
<PAGE> 31
If this Agreement shall be terminated pursuant to this
Section 8, the Offerors shall not then be under any liability to
the Underwriter except as provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration
---------------------------
Statement is not effective at the time of execution of this
Agreement, this Agreement shall become effective on the Effective
Date at the time the Commission declares the Registration Statement
effective. The Company shall immediately notify the Underwriter
when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective
at the earlier of 11:00 a.m. St. Louis time, on the first full
business day following the day on which this Agreement is executed,
or at such earlier time as the Underwriter shall release the
Designated Preferred Securities for initial public offering, and
the Underwriter shall notify the Offerors immediately after it has
taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective,
it may be terminated by the Offerors, by notifying the Underwriter
or by the Underwriter, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
-----------------------------------------------------
DELIVERY. The representations, warranties, indemnities,
- --------
agreements and other statements of the Offerors and their officers
and trustees set forth in or made pursuant to this Agreement and
the agreements of the Underwriter contained in Section 7 hereof
shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Offerors or
controlling persons of either Offeror, or by or on behalf of the
Underwriter or controlling persons of the Underwriter or any
termination or cancellation of this Agreement and shall survive
delivery of and payment for the Designated Preferred Securities.
11. NOTICES. Except as otherwise provided in this
-------
Agreement, all notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered
by hand, mailed by registered or certified mail, return receipt
requested, or transmitted by any standard form of telecommunication
and confirmed. Notices to Offerors shall be sent to 700 Corporate
Park Drive, St. Louis, Missouri 63105 (with a copy to Armstrong,
Teasdale, Schlafly & Davis, One Metropolitan Square, St. Louis,
Missouri 63102, Attention: John L. Gillis, Jr., Esq.) and notices
to the Underwriter shall be sent to Stifel, Nicolaus & Company,
Incorporated, 500 North Broadway, Suite 1500, St. Louis, Missouri
63102, Attention: Rick E. Maples (with a copy to Lewis, Rice &
Fingersh, L.C., 500 North Broadway, Suite 2000, St. Louis, Missouri
63102, Attention: Thomas C. Erb, Esq.).
12. PARTIES. The Agreement herein set forth is made
-------
solely for the benefit of the Underwriter and the Offerors and, to
the extent expressed, directors, trustees and officers of the
Offerors, any person controlling the Offerors or the Underwriter,
and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include any purchaser,
in his status as such purchaser, from the Underwriter of the
Designated Preferred Securities.
13. GOVERNING LAW. This Agreement shall be governed by
-------------
the laws of the State of Missouri, without giving effect to the
choice of law or conflicts of law principles thereof.
31
<PAGE> 32
14. COUNTERPARTS. This Agreement may be executed in one
------------
or more counterparts, and when a counterpart has been executed by
each party hereto all such counterparts taken together shall
constitute one and the same Agreement.
If the foregoing is in accordance with the Underwriter's
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this shall become a binding agreement
between the Company, the Trust and the Underwriter in accordance
with its terms.
Very truly yours,
MISSISSIPPI VALLEY BANCSHARES, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
MVBI CAPITAL TRUST
By:
-------------------------------------------
Name:
-----------------------------------------
Title: Administrative Trustee
----------------------------------------
CONFIRMED AND ACCEPTED,
as of ------------------------------------, 1997.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
32
<PAGE> 33
EXHIBIT A
LIST OF SUBSIDIARIES
33
<PAGE> 1
============================================================================
MISSISSIPPI VALLEY BANCSHARES, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
FLOATING RATE SUBORDINATED DEBENTURES DUE 2027
DATED AS OF ---------, 1997.
============================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions of Terms . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . 8
Section 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.4. [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . . 10
Section 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.6. Execution and Authentications. . . . . . . . . . . . . . . . . 11
Section 2.7. Registration of Transfer and Exchange. . . . . . . . . . . . . 12
Section 2.8. Temporary Debentures . . . . . . . . . . . . . . . . . . . . . 13
Section 2.9. Mutilated, Destroyed, Lost or Stolen
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.11. Benefit of Indenture . . . . . . . . . . . . . . . . . . . . . 14
Section 2.12. Authentication Agent . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III. REDEMPTION OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.1. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.2. Special Event Redemption . . . . . . . . . . . . . . . . . . . 15
Section 3.3. Optional Redemption by Company . . . . . . . . . . . . . . . . 16
Section 3.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 16
Section 3.5. Payment Upon Redemption. . . . . . . . . . . . . . . . . . . . 17
Section 3.6. No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . . . . . . 18
Section 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . 18
Section 4.2. Notice of Extension. . . . . . . . . . . . . . . . . . . . . . 18
Section 4.3. Limitation on Transactions . . . . . . . . . . . . . . . . . . 19
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . 19
Section 5.1. Payment of Principal and Interest. . . . . . . . . . . . . . . 19
Section 5.2. Maintenance of Agency. . . . . . . . . . . . . . . . . . . . . 19
Section 5.3. Paying Agents. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.4. Appointment to Fill Vacancy in Office of
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.5. Compliance with Consolidation Provisions . . . . . . . . . . . 21
Section 5.6. Limitation on Transactions . . . . . . . . . . . . . . . . . . 21
Section 5.7. Covenants as to the Trust. . . . . . . . . . . . . . . . . . . 21
Section 5.8. Covenants as to Purchases. . . . . . . . . . . . . . . . . . . 21
ARTICLE VI. DEBENTUREHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
i
<PAGE> 3
Section 6.1. Company to Furnish Trustee Names and
Addresses of Debentureholders. . . . . . . . . . . . . . . . . 22
Section 6.2. Preservation of Information Communications
with Debentureholders. . . . . . . . . . . . . . . . . . . . . 22
Section 6.3. Reports by the Company . . . . . . . . . . . . . . . . . . . . 22
Section 6.4. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII. REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON
EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.2. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 25
Section 7.3. Application of Moneys Collected. . . . . . . . . . . . . . . . 26
Section 7.4. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 26
Section 7.5. Rights and Remedies Cumulative; Delay or
Omission not Waiver. . . . . . . . . . . . . . . . . . . . . . 27
Section 7.6. Control by Debentureholders. . . . . . . . . . . . . . . . . . 27
Section 7.7. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII. FORM OF DEBENTURE AND ORIGINAL ISSUE. . . . . . . . . . . . . . . . . . . 28
Section 8.1. Form of Debenture. . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.2. Original Issue of Debentures . . . . . . . . . . . . . . . . . 28
ARTICLE IX. CONCERNING THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.1. Certain Duties and Responsibilities Trustee. . . . . . . . . . 28
Section 9.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.3. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . 30
Section 9.4. Trustee Not Responsible for Recitals, etc. . . . . . . . . . . 31
Section 9.5. May Hold Debentures. . . . . . . . . . . . . . . . . . . . . . 31
Section 9.6. Moneys Held in Trust . . . . . . . . . . . . . . . . . . . . . 31
Section 9.7. Compensation and Reimbursement . . . . . . . . . . . . . . . . 31
Section 9.8. Reliance on Officers' Certificate. . . . . . . . . . . . . . . 32
Section 9.9. Disqualification: Conflicting Interests . . . . . . . . . . . 32
Section 9.10. Corporate Trustee Required; Eligibility. . . . . . . . . . . . 32
Section 9.11. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.12. Acceptance of Appointment by Successor . . . . . . . . . . . . 34
Section 9.13. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . 34
Section 9.14. Preferential Collection of Claims Against
the Company. . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X. CONCERNING THE DEBENTUREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.1. Evidence of Action by Holders. . . . . . . . . . . . . . . . . 35
Section 10.2. Proof of Execution by Debentureholders . . . . . . . . . . . . 35
Section 10.3. Who May be Deemed Owners . . . . . . . . . . . . . . . . . . . 35
Section 10.4. Certain Debentures Owned by Company
Disregarded. . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.5. Actions Binding on Future Debentureholders . . . . . . . . . . 36
ARTICLE XI. SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.1. Supplemental Indentures Without the Consent
of Debentureholders. . . . . . . . . . . . . . . . . . . . . . 36
Section 11.2. Supplemental Indentures with Consent of
Debentureholders . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.3. Effect of Supplemental Indentures. . . . . . . . . . . . . . . 38
Section 11.4. Debentures Affected by Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ii
<PAGE> 4
Section 11.5. Execution of Supplemental Indentures . . . . . . . . . . . . . 38
ARTICLE XII. SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 12.1. Company May Consolidate, etc . . . . . . . . . . . . . . . . . 39
Section 12.2. Successor Corporation Substituted. . . . . . . . . . . . . . . 39
Section 12.3. Evidence of Consolidation, etc. to Trustee . . . . . . . . . . 40
ARTICLE XIII. SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 13.1. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 40
Section 13.2. Discharge of Obligations . . . . . . . . . . . . . . . . . . . 40
Section 13.3. Deposited Moneys to be Held in Trust . . . . . . . . . . . . . 41
Section 13.4. Payment of Monies Held by Paying Agents. . . . . . . . . . . . 41
Section 13.5. Repayment to Company . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 14.1. No Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XV. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 15.1. Effect on Successors and Assigns . . . . . . . . . . . . . . . 42
Section 15.2. Actions by Successor . . . . . . . . . . . . . . . . . . . . . 42
Section 15.3. Surrender of Company Powers. . . . . . . . . . . . . . . . . . 42
Section 15.4. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 15.5. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 15.6. Treatment of Debentures as Debt. . . . . . . . . . . . . . . . 42
Section 15.7. Compliance Certificates and Opinions . . . . . . . . . . . . . 43
Section 15.8. Payments on Business Days. . . . . . . . . . . . . . . . . . . 43
Section 15.9. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . 43
Section 15.10. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 15.11. Separability . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 15.12. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 15.13. Acknowledgment of Rights . . . . . . . . . . . . . . . . . . . 44
ARTICLE XVI. SUBORDINATION OF DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . 44
Section 16.1. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 44
Section 16.2. Default on Senior Debt, Subordinated Debt or
Additional Senior Obligations. . . . . . . . . . . . . . . . . 44
Section 16.3. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . 45
Section 16.4. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 16.5. Trustee to Effectuate Subordination. . . . . . . . . . . . . . 47
Section 16.6. Notice by the Company. . . . . . . . . . . . . . . . . . . . . 47
Section 16.7. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.8. Subordination may not be Impaired. . . . . . . . . . . . . . . 48
</TABLE>
iii
<PAGE> 5
<TABLE>
CROSS REFERENCE TABLE
<CAPTION>
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED INDENTURE
---------------- ----------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.9, 9.11
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1, 6.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a), 6.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.1(a), 9.3
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.2
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 7.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.1(b)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.9
Note: This Cross-Reference Table does not
constitute part of this Indenture and shall
not affect the interpretation of any of its
terms or provisions.
</TABLE>
v
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INDENTURE
INDENTURE, dated as of -----------, 1997, between MISSISSIPPI
VALLEY BANCSHARES, INC., a Missouri corporation (the "Company") and
STATE STREET BANK AND TRUST COMPANY, a trust company duly organized
and existing under the laws of the Commonwealth of Massachusetts,
as trustee (the "Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of securities to be known as its Floating
Rate Subordinated Debentures due 2027 (hereinafter referred to as
the "Debentures"), the form and substance of such Debentures and
the terms, provisions and conditions thereof to be set forth as
provided in this Indenture;
WHEREAS, MVBI Capital Trust, a Delaware statutory business
trust (the "Trust"), has offered to the public $---------- million
aggregate liquidation amount of its Preferred Securities (as
defined herein) and proposes to invest the proceeds from such
offering, together with the proceeds of the issuance and sale by
the Trust to the Company of $--------- million aggregate
liquidation amount of its Common Securities (as defined herein), in
$---------- million aggregate principal amount of the Debentures;
and
WHEREAS, the Company has requested that the Trustee execute
and deliver this Indenture; and
WHEREAS, all requirements necessary to make this Indenture a
valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company,
have been performed, and the execution and delivery of this
Indenture have been duly authorized in all respects:
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Debentures by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit
of the holders of the Debentures:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1 and shall include the plural as well
as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act, or that are by reference in the
Trust Indenture Act defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise
requires), shall have the meanings
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assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this
instrument. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in
accordance with Generally Accepted Accounting Principles.
"3-Month Treasury" shall have the meaning set forth in Section
2.5.
"Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Section 2.2(c), the
date selected by the Company which is prior to the Scheduled
Maturity Date, but is after March 31, 2002.
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Additional Senior Obligations" means all indebtedness of the
Company whether incurred on or prior to the date of this Indenture
or thereafter incurred, for claims in respect of derivative
products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; provided, however,
that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which,
by their terms, are expressly stated to be not superior in right of
payment to the Debentures or to rank pari passu in right of payment
with the Debentures. For purposes of this definition, "claim"
shall have the meaning assigned thereto in Section 101(4) of the
United States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in
the Trust Agreement.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with
power to vote 10% or more of the outstanding voting securities or
other ownership interests of the specified Person; (b) any Person
10% or more of whose outstanding voting securities or other
ownership interests are directly or indirectly owned, controlled or
held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common
control with the specified Person; (d) a partnership in which the
specified Person is a general partner; (e) any officer or director
of the specified Person; and (f) if the specified Person is an
individual, any entity of which the specified Person is an officer,
director or general partner.
"Authenticating Agent" means an authenticating agent with
respect to the Debentures appointed by the Trustee pursuant to
Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Business Day" means, with respect to the Debentures, any day
other than a Saturday or a Sunday or a day on which federal or
state banking institutions in the Borough of Manhattan, The City
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of New York, are authorized or required by law, executive order or
regulation to close, or a day on which the Corporate Trust Office
of the Trustee or the Property Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect that,
as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision 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 such
proposed change, pronouncement or decision is announced on or after
the date of issuance of the Preferred Securities under the Trust
Agreement, there is more than an insubstantial risk of impairment
of the Company's ability to treat the aggregate liquidation amount
of the Preferred Securities (or any substantial portion thereof) as
"Tier 1 Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the principal
accounting officer, the treasurer or any vice president of the
Company. The Certificate need not comply with the provisions of
Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in
the definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission.
"Common Securities" means undivided beneficial interests in
the assets of the Trust which rank pari passu with the Preferred
Securities; provided, however, that upon the occurrence of an Event
of Default, the rights of holders of Common Securities to payment
in respect of (i) distributions, and (ii) payments upon
liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means Mississippi Valley Bancshares, Inc., a
corporation duly organized and existing under the laws of the State
of Missouri, and, subject to the provisions of Article XII, shall
also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at Two International Place, 4th Floor, Boston Massachusetts
02110, Attention: Corporate Trust Department.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodian" means any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals
hereto.
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"Debentureholder," "holder of Debentures," "registered
holder," or other similar term, means the Person or Persons in
whose name or names a particular Debenture shall be registered on
the books of the Company or the Trustee kept for that purpose in
accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in
Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed;
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account
of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in
the ordinary course of business); (v) every capital lease
obligation of such Person; and (vi) and every obligation of the
type referred to in clauses (i) through (v) of another Person and
all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that as a result of the occurrence
and continuation of a Special Event, the Trust is to be dissolved
in accordance with the Trust Agreement and the Debentures held by
the Property Trustee are to be distributed to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Trust Agreement.
"Distribution Period" shall have the meaning set forth in
Section 2.5.
"Event of Default" means, with respect to the Debentures, any
event specified in Section 7.1, which has continued for the period
of time, if any, and after the giving of the notice, if any,
therein designated.
"Exchange Act," means the Securities Exchange Act of 1934, as
amended, as in effect at the date of execution of this instrument.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Extended Maturity Date" means if the Company elects to extend
the Maturity Date in accordance with Section 2.2(b), the date
selected by the Company which is after the Scheduled Maturity Date
but before March 31, 2036.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Generally Accepted Accounting Principles" means such
accounting principles as are generally accepted at the time of any
computation required hereunder.
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"Governmental Obligations" means 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 that, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such Governmental Obligation or a
specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
"Herein," "hereof," and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the
terms hereof.
"Interest Payment Date," when used with respect to any
installment of interest on the Debentures, means the date specified
in the Indenture, the Debenture or in an indenture supplemental
hereto with respect to the Debentures as the fixed date on which an
installment of interest with respect to the Debentures is due and
payable.
"Investment Company Act" means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
"Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized
national tax and securities law practice, to the effect that, as a
result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or shall be
considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of original issuance
of the Preferred Securities under the Trust Agreement.
"Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with
all accrued and unpaid interest thereon including Compounded
Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in
Section 3.2.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof. Each
such certificate shall include the statements provided for in
Section 15.7, if and to the extent required by the provisions
thereof.
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"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in
Section 15.7, if and to the extent required by the provisions
thereof.
"Outstanding," when used with reference to the Debentures,
means, subject to the provisions of Section 10.4, as of any
particular time, all Debentures theretofore authenticated and
delivered by the Trustee under this Indenture, except
(a) Debentures theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Debentures
or portions thereof for the payment or redemption of which moneys
or Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Debentures or portions of
such Debentures are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article III
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.7.
"Person" means any individual, corporation, partnership,
joint-venture, joint-stock company, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by
such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section
2.9 in lieu of a lost, destroyed or stolen Debenture shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Debenture.
"Preferred Securities" means undivided beneficial interests in
the assets of the Trust which rank pari passu with Common
Securities issued by the Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that
operate directly or indirectly for the benefit of holders of
Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Responsible Officer" when used with respect to the Trustee
means the Chairman of the Board of Directors, the President, any
Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with
the particular subject.
"Scheduled Maturity Date" means March 31, 2027.
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"Securities Act," means the Securities Act of 1933, as
amended, as in effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not such claim for post-petition interest
is allowed in such proceeding), on Debt, whether incurred on or
prior to the date of this Indenture or thereafter incurred, unless,
in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations
are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures;
provided, however, that Senior Debt shall not be deemed to include
(i) any Debt of the Company which when incurred and without respect
to any election under section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the
Company; (ii) any Debt of the Company to any of its subsidiaries;
(iii) Debt to any employee of the Company; (iv) Debt which by its
terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the
holders of the Debentures as a result of the subordination
provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to
pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as
a result of subordination provisions to which such Debt is subject;
and (v) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in
Section 16.2.
"Special Event" means a Tax Event, a Capital Treatment Event
or an Investment Company Event.
"Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such claim for post-petition
interest is allowed in such proceeding), on Debt, whether incurred
on or prior to the date of this Indenture or thereafter incurred,
which is by its terms expressly provided to be junior and
subordinate to other Debt of the Company (other than the
Debentures).
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries; (ii) any general partnership, joint
venture, trust 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.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax
and securities practice, to the effect that, as a result of any
amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under the Trust Agreement,
there is more than an insubstantial risk that (i) the Trust is, or
shall be within 90 days after the date of such Opinion of
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Counsel, subject to United States federal income tax with respect to
income received or accrued on the Debentures; (ii) interest payable by
the Company on the Debentures is not, or within 90 days after the date
of such Opinion of Counsel, shall not be, deductible by the
Company, in whole or in part, for United States federal income tax
purposes; or (iii) the Trust is, or shall be within 90 days after
the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties, assessments or other
governmental charges. The Trust or the Company shall request and
receive such Opinion of Counsel with regard to such matters within
a reasonable period of time after the Trust or the Company shall
have become aware of any of the events described in clauses (i)
through (iii) above.
"Trust" means MVBI Capital Trust, a Delaware statutory
business trust.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated ----------, 1997, of the Trust.
"Trustee" means State Street Bank and Trust Company and,
subject to the provisions of Article IX, shall also include its
successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, "Trustee" shall mean each
such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939,
as amended, subject to the provisions of Sections 11.1, 11.2, and
12.1, as in effect at the date of execution of this instrument.
"Trust Securities" means the Common Securities and Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means
shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized Debentures designated the "Floating
Rate Subordinated Debentures due 2027," limited in aggregate
principal amount to $---------- million, which amount shall be as
set forth in any written order of the Company for the
authentication and delivery of Debentures pursuant to Section 2.6.
SECTION 2.2. MATURITY.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to extend the Maturity Date
beyond the Scheduled Maturity Date in accordance
with Section 2.2(b), the Extended Maturity Date;
or
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(iii) if the Company elects to accelerate the Maturity
Date to be a date prior to the Scheduled Maturity
Date in accordance with Section 2.2(c), the
Accelerated Maturity Date.
(b) the Company may at any time before the day which is 90
days before the Scheduled Maturity Date, elect to extend
the Maturity Date to the Extended Maturity Date, provided
that the Company has received the prior approval of the
Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve and further
provided that the following conditions in this
Section 2.2(b) are satisfied both at the date the Company
gives notice in accordance with Section 2.2(d) of its
election to extend the Maturity Date and at the Scheduled
Maturity Date:
(i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation;
(ii) the Company is not in default in the payment of
interest or principal on the Debentures;
(iii) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by
it and no deferred Distributions are accumulated;
and
(iv) the Company has a rating on its Senior Debt of
investment grade.
(c) the Company may at any time before the day which is 90
days before the Scheduled Maturity Date and after
March 31, 2002, elect to shorten the Maturity Date only
once to the Accelerated Maturity Date provided that the
Company has received the prior approval of the Federal
Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve.
(d) if the Company elects to extend the Maturity Date in
accordance with Section 2.2(b), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the extension of the
Maturity Date and the Extended Maturity Date at least 90
days and no more than 180 days before the Scheduled
Maturity Date.
(e) if the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(c), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the extension of the
Maturity Date and the Accelerated Maturity Date at least
90 days and no more than 180 days before the Accelerated
Maturity Date.
SECTION 2.3. FORM AND PAYMENT.
The Debentures shall be issued in fully registered
certificated form without interest coupons. Principal and interest
on the Debentures issued in certificated form shall be payable, the
transfer of such Debentures shall be registrable and such
Debentures shall be exchangeable for Debentures bearing identical
terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the holder at such address
as shall appear in the Debenture Register or by wire transfer to an
account maintained by the holder as specified in the Debenture
Register, provided that the holder provides proper transfer
instructions by the regular record date. Notwithstanding the
foregoing, so long as the holder of any Debentures is the
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Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on
such Debentures held by the Property Trustee shall be made at such
place and to such account as may be designated by the Property
Trustee.
SECTION 2.4. [INTENTIONALLY OMITTED].
SECTION 2.5. INTEREST.
(a) Each Debenture shall bear interest at a rate per annum
determined by reference to 3-Month Treasury, determined as
described below, plus % (the "Coupon Rate") during any period
beginning on, and including, the date of original issuance, and
ending on, but excluding, the first Interest Payment Date, and each
successive period beginning on, and including, an Interest Payment
Date, and ending on, but excluding, the next succeeding Interest
Payment Date (a "Distribution Period") applied to the principal
amount thereof until the principal thereof becomes due and payable,
and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date," commencing on June 30,
1997), to the Person in whose name such Debenture or any
Predecessor Debenture is registered, at the close of business on
the regular record date for such interest installment, which shall
be the fifteenth day of the last month of the calendar quarter.
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest payable for any period shorter than a full
quarterly period for which interest is computed shall be computed
on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which interest
is payable on the Debentures is not a Business Day, then payment of
interest payable on such date shall 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 the date such payment was originally payable.
(c) If, at any time while the Property Trustee is the holder
of any Debentures, the Trust or the Property Trustee is required to
pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the
United States, or any other taxing authority, then, in any case,
the Company shall pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after
paying such taxes, duties, assessments or other governmental
charges shall be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments
or other government charges been imposed.
(d) "3-Month Treasury" means the yield on United
States of America Treasury constant maturities, adjusted to a
constant maturity of three (3) months, reported by the Federal
Reserve. 3-Month Treasury, with respect to any Distribution
Period, will be determined by the Property Trustee as follows:
(i) On the second Business Day preceding the
commencement of such Distribution Period (each, a
"Determination Date"), 3-Month Treasury will be the current
yield for United States of America Treasury constant
maturities, adjusted to a constant maturity of three (3) months,
which appears on the appropriate
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Federal Reserve Statistical Release Series H.15 (519) which includes
data for such Determination Date, or as then currently furnished or
made available by the Federal Reserve if such Series is no longer
published.
(ii) If, on any Determination Date, the Property
Trustee is required but unable to determine 3-Month Treasury
in the manner provided in paragraph (i) above, 3-Month
Treasury for such Distribution Period will be 3-Month
Treasury as determined on the previous Determination Date.
(e) The Property Trustee will notify the Company, the Trustee
and any securities exchange or interdealer quotation system on
which the Preferred Securities are listed, of the Distribution Rate
and the Distribution Date for each Distribution Period, in each
case as soon as practicable after the determination thereof but in
no event later than the seventh Business Day of the relevant
Distribution Period. Failure to notify the Company, the Trustee or any
securities exchange or interdealer quotation system, or any defect in
said notice, shall not affect the obligation of the Company to make
payment on the Debentures at the applicable Distribution Rate. Any
error in the calculation of the Distribution Rate by the Property
Trustee may be corrected at any time by notice delivered as above
provided.
(f) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or
obtained for the purposes of the provisions relating to the payment
and calculation of Distributions on the Debentures and the
Preferred Securities and the Debentures by the Trustee or the
Property Trustee will (in the absence of willful default, bad faith
or manifest error) be binding on MVBI Capital, the Company, and all
of the holders of the Preferred Securities, and no liability will
(in the absence of willful default, bad faith or manifest error)
attach to the Trustee or the Property Trustee in connection with
the exercise or non-exercise by either of them of their respective
powers, duties and discretion.
SECTION 2.6. EXECUTION AND AUTHENTICATIONS.
(a) The Debentures shall be signed on behalf of the Company
by its Chief Executive Officer, President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or
one of its Assistant Secretaries. Signatures may be in the form of
a manual or facsimile signature. The Company
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may use the facsimile signature of any Person who shall have been a
Chief Executive Officer, President or Vice President thereof, or of
any Person who shall have been a Secretary or Assistant Secretary
thereof, notwithstanding the fact that at the time the Debentures
shall be authenticated and delivered or disposed of such Person shall
have ceased to be the Chief Executive Officer, President or a Vice
President, or the Secretary or an Assistant Secretary, of the
Company. The seal of the Company may be in the form of a facsimile
of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures. The Debentures may contain such
notations, legends or endorsements required by law, stock exchange
rule or usage. Each Debenture shall be dated the date of its
authentication by the Trustee.
(b) A Debenture shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an
Authenticating Agent. Such signature shall be conclusive evidence
that the Debenture so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits
of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Debentures signed by its Chief Executive Officer,
President or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to
such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 9.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
(e) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture shall affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise in
a manner that is not reasonably acceptable to the Trustee.
SECTION 2.7. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Debentures may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in
the Borough of Manhattan, The City of New York, or at the office of
the Debenture Registrar, for other Debentures and for a like
aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all
as provided in this Section 2.7. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Debenture or Debentures that the
Debentureholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, The City of New York, or at the office of the Debenture
Registrar, or such other location designated by the Company a
register or registers (herein referred to as the "Debenture
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall register the Debentures and the
transfers of Debentures as in this Article II provided and which at
all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of
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registering Debentures and transfer of Debentures as herein provided
shall initially be the Trustee and thereafter as may be appointed by
the Company as authorized by Board Resolution (the "Debenture
Registrar"). Upon surrender for transfer of any Debenture at the
office or agency of the Company designated for such purpose, the
Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in the name of the transferee or transferees a
new Debenture or Debentures for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section 2.7, shall be accompanied (if
so required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered
holder or by such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures
in case of partial redemption, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
in relation thereto, other than exchanges pursuant to Section 2.8,
the second paragraph of Section 3.5 and Section 11.4 not involving
any transfer.
(d) The Company shall not be required (i) to issue, exchange
or register the transfer of any Debentures during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the Outstanding
Debentures and ending at the close of business on the day of such
mailing; nor (ii) to register the transfer of or exchange any
Debentures or portions thereof called for redemption.
SECTION 2.8. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company
may execute, and the Trustee shall authenticate and deliver,
temporary Debentures (printed, lithographed, or typewritten). Such
temporary Debentures shall be substantially in the form of the
definitive Debentures in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company.
Every temporary Debenture shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Debentures. Without unnecessary delay the Company shall
execute and shall furnish definitive Debentures and thereupon any
or all temporary Debentures may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the
Company designated for the purpose in the Borough of Manhattan, The
City of New York, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary
Debentures an equal aggregate principal amount of definitive
Debentures, unless the Company advises the Trustee to the effect
that definitive Debentures need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary
Debentures shall be entitled to the same benefits under this
Indenture as definitive Debentures authenticated and delivered
hereunder.
SECTION 2.9. MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
the Company's request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Debenture bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Debenture, or in lieu of and in substitution for the
Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company
and the Trustee such security or indemnity as
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may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Debenture and of the
ownership thereof. The Trustee may authenticate any such
substituted Debenture and deliver the same upon the written request
or authorization of the Chairman, President or any Vice-President
and the Treasurer or any Assistant Treasurer of the Company. Upon
the issuance of any substituted Debenture, the Company may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Debenture that has matured or is
about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debenture,
pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant for
such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an additional
contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Debenture shall be found at any time, or
be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Debentures duly issued hereunder. All Debentures shall be
held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their
surrender.
SECTION 2.10. CANCELLATION.
All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall
be canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company at the
time of such surrender, the Trustee shall deliver to the Company
canceled Debentures held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise
acquire any of the Debentures, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11. BENEFIT OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or
implied, shall give or be construed to give to any Person, other
than the parties hereto and the holders of the Debentures (and,
with respect to the provisions of Article XVI, the holders of
Senior Indebtedness) any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Debentures (and, with respect to
the provisions of Article XVI, the holders of Senior Indebtedness).
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SECTION 2.12. AUTHENTICATION AGENT.
(a) So long as any of the Debentures remain Outstanding there
may be an Authenticating Agent for any or all such Debentures,
which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Debentures issued upon exchange, transfer
or partial redemption thereof, and Debentures so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the
authentication of Debentures by the Trustee shall be deemed to
include authentication by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject
to supervision or examination by federal or state authorities. If
at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
ARTICLE III.
REDEMPTION OF DEBENTURES
SECTION 3.1. REDEMPTION.
Subject to the Company having received prior approval of the
Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, the Company may
redeem the Debentures issued hereunder on and after the dates set
forth in and in accordance with the terms of this Article III.
SECTION 3.2. SPECIAL EVENT REDEMPTION.
Subject to the Company having received the prior approval of
the Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, if a Special Event
has occurred and is continuing, then, notwithstanding
Section 3.3(a) but subject to Section 3.3(b), the Company shall
have the right upon not less than 30 days nor more than 60 days
notice to the holders of the Debentures to redeem the Debentures,
in whole but not in part, for cash within 180 days following the
occurrence of such Special Event (the "180-Day Period") at a
redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Redemption Price"), provided that if at
the time there is available to the Company the opportunity to
eliminate, within the 180-Day Period, a Tax Event by taking some
ministerial action (a "Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar
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reasonable measure which has no adverse effect on the Company, the
Trust or the holders of the Trust Securities issued by the Trust, the
Company shall pursue such Ministerial Action in lieu of redemption,
and, provided further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial
Action pursuant to its obligations under the Trust Agreement. The
Redemption Price shall be paid prior to 12:00 noon, New York time,
on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York time, on the date such Redemption Price is to be
paid.
SECTION 3.3. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(b), except as
otherwise may be specified in this Indenture, the Company shall
have the right to redeem the Debentures, in whole or in part, from
time to time, on or after March 31, 2002, at a Redemption Price
equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption.
Any redemption pursuant to this Section 3.3(a) shall be made upon
not less than 30 days nor more than 60 days notice to the holder of
the Debentures, at the Redemption Price. If the Debentures are
only partially redeemed pursuant to this Section 3.3, the
Debentures shall be redeemed pro rata or by lot or in such other
manner as the Trustee shall deem appropriate and fair in its
discretion. The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to pay
the Redemption Price by 10:00 a.m., New York time, on the date such
Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities issued by the Trust from
The Nasdaq Stock Market's National Market or any national
securities exchange or other organization on which the Preferred
Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures
in whole.
SECTION 3.4. NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Debentures
in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to upon receipt of 45 days' written
notice from the Company (which notice shall, in the event of a
partial redemption, include a representation to the effect that
such partial redemption shall not result in the delisting of the
Preferred Securities as described in Section 3.3(b) above), give
notice of such redemption to holders of the Debentures to be
redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before
the date fixed for redemption to such holders at their last
addresses as they shall appear upon the Debenture Register unless
a shorter period is specified in the Debentures to be redeemed.
Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly
to give such notice to the holder of any Debenture designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Debentures. In the case of any redemption of Debentures
prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction. Each
such notice of redemption shall specify the date fixed for
redemption and the Redemption Price and shall state that payment of
the Redemption Price shall
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be made at the office or agency of the Company in the Borough of
Manhattan, The City of New York or at the Corporate Trust Office, upon
presentation and surrender of such Debentures, that interest accrued
to the date fixed for redemption shall be paid as specified in said
notice and that from and after said date interest shall cease to
accrue. If less than all the Debentures are to be redeemed, the
notice to the holders of the Debentures shall specify the particular
Debentures to be redeemed. If the Debentures are to be redeemed in
part only, the notice shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the
redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof
shall be issued.
(b) If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance
of the date fixed for redemption as to the aggregate principal
amount of Debentures to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion, the portion or portions
(equal to $25 or any integral multiple thereof) of the Debentures
to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Debentures to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect
pursuant to the terms hereof, by delivery of instructions signed on
its behalf by its President or any Vice President, instruct the
Trustee or any paying agent to call all or any part of the
Debentures for redemption and to give notice of redemption in the
manner set forth in this Section 3.4, such notice to be in the name
of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required
under the provisions of this Section 3.4.
SECTION 3.5. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of
Debentures to be redeemed specified in such notice shall become due
and payable on the date and at the place stated in such notice at
the applicable Redemption Price, and interest on such Debentures or
portions of Debentures shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such Redemption Price with respect to any such Debenture
or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place
of payment specified in the notice, said Debentures shall be paid
and redeemed at the Redemption Price (but if the date fixed for
redemption is an interest payment date, the interest installment
payable on such date shall be payable to the registered holder at
the close of business on the applicable record date pursuant to
Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Debenture of authorized denomination in
principal amount equal to the unredeemed portion of the Debenture
so presented.
SECTION 3.6. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking
fund.
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ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarters (the "Extended
Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no
Extended Interest Payment Period may extend beyond the Maturity
Date. Interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this
Section 4.1, shall bear interest thereon at the Coupon Rate
compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period, the Company shall calculate (and deliver
such calculation to the Trustee) and pay all interest accrued and
unpaid on the Debentures, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Debentures in whose names the
Debentures are registered in the Debenture Register on the first
record date after the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period
together with all such further extensions thereof shall not exceed
20 consecutive quarters, or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due
and payable during an Extended Interest Payment Period, except at
the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment
Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of
the Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of
its selection of such Extended Interest Payment Period two Business
Days before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by the Trust are
payable; or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to The
Nasdaq Stock Market's National Market or other applicable
self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give the holders of the
Debentures and the Trustee written notice of its selection of such
Extended Interest Payment Period at least two Business Days before
the earlier of (i) the next succeeding Interest Payment Date; or
(ii) the date the Company is required to give notice of the record
or payment date of such interest payment to The Nasdaq Stock
Market's National Market or other applicable self-regulatory
organization or to holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.1.
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SECTION 4.3. LIMITATION ON TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1; or (ii) there shall have
occurred any Event of Default, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than as a result of a
reclassification of its capital stock for another class of its
capital stock); (b) the Company shall not make any payment of
interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Company which rank pari
passu with or junior to the Debentures; provided, however, that
notwithstanding the foregoing the Company may make payments
pursuant to its obligations under the Preferred Securities
Guarantee; and (c) the Company shall not redeem, purchase or
acquire less than all of the outstanding Debentures or any of the
Preferred Securities.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall duly and punctually pay or cause to be paid
the principal of and interest on the Debentures at the time and
place and in the manner provided herein.
SECTION 5.2. MAINTENANCE OF AGENCY.
So long as any of the Debentures remain Outstanding, the
Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, and at such other location or
locations as may be designated as provided in this Section 5.2,
where (i) Debentures may be presented for payment; (ii) Debentures
may be presented as hereinabove authorized for registration of
transfer and exchange; and (iii) notices and demands to or upon the
Company in respect of the Debentures and this Indenture may be
given or served, such designation to continue with respect to such
office or agency until the Company shall, by written notice signed
by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. In addition to any such
office or agency, the Company may from time to time designate one
or more offices or agencies outside of the Borough of Manhattan,
The City of New York, where the Debentures may be presented for
registration or transfer and for exchange in the manner provided
herein, and the Company may from time to time rescind such
designation as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any
such office or agency in the Borough of Manhattan, The City of New
York, for the purposes above mentioned. The Company shall give the
Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 5.3. PAYING AGENTS.
(a) The Property Trustee shall act as the Paying Agent. If
the Company shall appoint one or more paying agents for the
Debentures, other than the Trustee, the Company shall cause each
such paying
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agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of
this Section 5.3:
(i) that it shall hold all sums held by it as such agent
for the payment of the principal of or interest on the
Debentures (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust
for the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of or
interest on the Debentures when the same shall be due and
payable;
(iii) that it shall, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(ii)
above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent;
and
(iv) that it shall perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to the Debentures, it shall on or before each due date of
the principal of or interest on such Debentures, set aside,
segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal or interest so
becoming due on Debentures until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Debentures) to take such action.
Whenever the Company shall have one or more paying agents for the
Debentures, it shall, prior to each due date of the principal of or
interest on any Debentures, deposit with the paying agent a sum
sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to
such principal or interest, and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee of this
action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the
contrary, (i) the agreement to hold sums in trust as provided in
this Section 5.3 is subject to the provisions of Section 13.3 and
13.4; and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and
conditions as those upon which such sums were held by the Company
or such paying agent; and, upon such payment by any paying agent to
the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, shall appoint, in the manner provided in
Section 9.10, a Trustee, so that there shall at all times be a
Trustee hereunder.
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SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company shall not, while any of the Debentures remain
outstanding, consolidate with, or merge into, or merge into itself,
or sell or convey all or substantially all of its property to any
other company unless the provisions of Article XII hereof are
complied with.
SECTION 5.6. LIMITATION ON TRANSACTIONS.
If Debentures are issued to the Trust or a trustee of the
Trust in connection with the issuance of Trust Securities by the
Trust and (i) there shall have occurred any event that would
constitute an Event of Default; (ii) the Company shall be in
default with respect to its payment of any obligations under the
Preferred Securities Guarantee relating to the Trust; or (iii) the
Company shall have given notice of its election to defer payments
of interest on such Debentures by extending the interest payment
period as provided in this Indenture and such period, or any
extension thereof, shall be continuing, then (a) the Company shall
not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than as a
result of a reclassification of its capital stock for another class
of its capital stock); (b) the Company shall not make any payment
of interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Company which rank pari
passu with or junior to the Debentures; provided, however, that the
Company may make payments pursuant to its obligations under the
Preferred Securities Guarantee; and (c) the Company shall not
redeem, purchase or acquire less than all of the outstanding
Debentures or any of the Preferred Securities.
SECTION 5.7. COVENANTS AS TO THE TRUST.
For so long as such Trust Securities of the Trust remain
outstanding, the Company shall (i) maintain 100% direct or indirect
ownership of the Common Securities of the Trust; provided, however,
that any permitted successor of the Company under this Indenture
may succeed to the Company's ownership of the Common Securities;
(ii) not voluntarily terminate, wind up or liquidate the Trust,
except upon prior approval of the Federal Reserve if then so
required under applicable capital guidelines or policies of the
Federal Reserve and use its reasonable efforts to cause the Trust
(a) to remain a business trust, except in connection with a
distribution of Debentures, the redemption of all of the Trust
Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement; and (b) to
otherwise continue not to be treated as an association taxable as
a corporation or partnership for United States federal income tax
purposes; and (iii) use its reasonable efforts to cause each holder
of Trust Securities to be treated as owning an individual
beneficial interest in the Debentures. In connection with the
distribution of the Debentures to the holders of the Preferred
Securities issued by the Trust upon a Dissolution Event, the
Company shall use its best efforts to list such Debentures on The
Nasdaq Stock Market's National Market or on such other exchange as
the Preferred Securities are then listed.
SECTION 5.8. COVENANTS AS TO PURCHASES.
Prior to March 31, 2002, the Company shall not purchase any
Debentures, in whole or in part, from the Trust.
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ARTICLE VI.
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company shall furnish or cause to be furnished to the
Trustee (a) on a monthly basis on each regular record date (as
described in Section 2.5) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
the Debentures as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustee by the Company (in
the event the Company fails to provide such list on a monthly
basis, the Trustee shall be entitled to rely on the most recent
list provided by the Company); and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished if the Trustee shall be the Debenture Registrar.
SECTION 6.2. PRESERVATION OF INFORMATION COMMUNICATIONS WITH
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most recent
list furnished to it as provided in Section 6.1 and as to the names
and addresses of holders of Debentures received by the Trustee in
its capacity as registrar for the Debentures (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Debentureholders with
respect to their rights under this Indenture or under the
Debentures.
SECTION 6.3. REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required
pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from to time by the Commission, such additional
information, documents and reports with respect to compliance by
the Company with the conditions and
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covenants provided for in this Indenture as may be required from time
to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 6.3 as may be required by
rules and regulations prescribed from time to time by the
Commission.
SECTION 6.4. REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by mail,
first class postage prepaid, to the Debentureholders, as their
names and addresses appear upon the Debenture Register, a brief
report dated as of the preceding May 15, if and to the extent
required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Debentures are
listed (if so listed) and also with the Commission. The Company
agrees to notify the Trustee when any Debentures become listed on
any stock exchange.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures,
"Event of Default" means any one or more of the following events
that has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Debentures, as and
when the same shall become due and payable, and continuance of
such default for a period of 30 days; provided, however, that
a valid extension of an interest payment period by the Company
in accordance with the terms of this Indenture shall not
constitute a default in the payment of interest for this
purpose;
(ii) the Company defaults in the payment of the principal
on the Debentures as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration
or otherwise; provided, however, that a valid extension of the
maturity of such Debentures in accordance with the terms of
this Indenture shall not constitute a default in the payment
of principal;
(iii) the Company fails to observe or perform any other
of its covenants or agreements with respect to the Debentures
for a period of 90 days after the date on which written notice of
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such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures
at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case; (ii) consents
to the entry of an order for relief against it in an
involuntary case; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its
property; or (iv) makes a general assignment for the benefit
of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case; (ii) appoints a Custodian of
the Company for all or substantially all of its property; or
(iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of
Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of
the outstanding Trust Securities of the Trust; or
(iii) certain mergers, consolidations or amalgamations, each
as permitted by the Trust Agreement.
(b) In each and every such case, unless the principal of all
the Debentures shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by
such Debentureholders) may declare the principal of all the
Debentures to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained in this Indenture or in
the Debentures.
(c) At any time after the principal of the Debentures shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Debentures then Outstanding
hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the
Debentures and the principal of any and all Debentures that shall
have become due otherwise than by acceleration (with interest upon
such principal, and upon overdue installments of interest, at the
rate per annum expressed in the Debentures to the date of such
payment or deposit) and the amount payable to the Trustee under
Section 9.6; and (ii) any and all Events of Default under this
Indenture, other than the nonpayment of principal on Debentures
that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 7.6. No such rescission
and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
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SECTION 7.2. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
(a) The Company covenants that (1) in case it shall default
in the payment of any installment of interest on any of the
Debentures, and such default shall have continued for a period of
90 Business Days; or (2) in case it shall default in the payment of
the principal of any of the Debentures when the same shall have
become due and payable, whether upon maturity of the Debentures or
upon redemption or upon declaration or otherwise, then, upon demand
of the Trustee, the Company shall pay to the Trustee, for the
benefit of the holders of the Debentures, the whole amount that
then shall have been become due and payable on all such Debentures
for principal or interest, or both, as the case may be, with
interest upon the overdue principal and (if the Debentures are held
by the Trust or a trustee of the Trust, without duplication of any
other amounts paid by the Trust or trustee in respect thereof) upon
overdue installments of interest at the rate per annum expressed in
the Debentures; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
and the amount payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon
the Debentures and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or other obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company or the creditors or
property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the
claims of the Trustee and of the holders of the Debentures allowed
for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for
any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to
the Trustee under Section 9.7; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of the Debentures to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Debentureholders, to pay
to the Trustee any amount due it under Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Debentures, may be enforced by the Trustee without the possession
of any of such Debentures, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for payment to the Trustee of any amounts
due under Section 9.7, be for the ratable benefit of the holders of
the Debentures. In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested
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in the Trustee by this Indenture or by law. Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Debentureholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Debentureholder in any
such proceeding.
SECTION 7.3. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee pursuant to this Article
VII with respect to the Debentures shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal or
interest, upon presentation of the Debentures, and notation thereon
the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid
upon the Debentures for principal and interest, in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively.
SECTION 7.4. LIMITATION ON SUITS.
(a) No holder of any Debenture shall have any right by virtue
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 (i) 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 Debentures specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Debentures then Outstanding shall have made
written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder
or holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee
for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders of a
majority in principal amount of the Debentures do not give the
Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary
or any other provisions of this Indenture, the right of any holder
of the Debentures to receive payment of the principal of and
interest on the Debentures, as therein provided, on or after the
respective due dates expressed in such Debenture (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder and by accepting a Debenture hereunder it is
expressly understood, intended and covenanted by the taker and
holder of every Debenture with every other such taker and holder
and the Trustee, that no one or more holders of Debentures shall
have any right in any manner whatsoever
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by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such
Debentures, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debentures. For the
protection and enforcement of the provisions of this Section 7.4, each
and every Debentureholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER.
(a) Except as otherwise provided in Section 2.9, all powers
and remedies given by this Article VII to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a
waiver of any such default or on acquiescence therein; and, subject
to the provisions of Section 7.4, every power and remedy given by
this Article VII or by law to the Trustee or the Debentureholders
may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Debentureholders.
SECTION 7.6. CONTROL BY DEBENTUREHOLDERS.
The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding, determined in accordance with
Section 10.4, shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the
provisions of Section 9.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee
in personal liability. The holders of a majority in aggregate
principal amount of the Debentures at the time Outstanding affected
thereby, determined in accordance with Section 10.4, may on behalf
of the holders of all of the Debentures waive any past default in
the performance of any of the covenants contained herein and its
consequences, except (i) a default in the payment of the principal
of or interest on, any of the Debentures as and when the same shall
become due by the terms of such Debentures otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal has been deposited with the Trustee (in accordance with
Section 7.1(c)); (ii) a default in the covenants contained in
Section 5.6; or (iii) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
holder of each Outstanding Debenture affected; provided, however,
that if the Debentures are held by the Trust or a trustee of the
Trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in liquidation preference
of Trust Securities of the Trust shall have consented to such
waiver or modification to such waiver; provided further, that if
the consent of the holder of each Outstanding Debenture is
required, such waiver shall not be effective until each holder of
the Trust Securities of the Trust shall have consented to such
waiver. Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of
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the Debentures shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.7. UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any
Debentures by such holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this
Section 7.8 shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Debentureholder, or group of
Debentureholders holding more than 10% in aggregate principal
amount of the Outstanding Debentures, or to any suit instituted by
any Debentureholder for the enforcement of the payment of the
principal of or interest on the Debentures, on or after the
respective due dates expressed in such Debenture or established
pursuant to this Indenture.
ARTICLE VIII.
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1. FORM OF DEBENTURE.
The Debenture and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the forms
contained as Exhibit A attached hereto and incorporated herein by
reference.
SECTION 8.2. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $----------
may, upon execution of this Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon
the written order of the Company, signed by its Chairman, its Vice
Chairman, its President, or any Vice President and its Treasurer or
an Assistant Treasurer, without any further action by the Company.
ARTICLE IX.
CONCERNING THE TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect to the Debentures
such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default has
occurred that has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) 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:
(i) the duties and obligations of the Trustee
shall with respect to the Debentures be determined solely
by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the
Debentures 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
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to the
Debentures conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than
a majority in principal amount of the Debentures at the time
Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Debentures;
and
(4) 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 9.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder with
respect to the Securities, the Trustee shall transmit by mail to
all holders of the Debentures, as their names and addresses appear
in the Debenture Register, notice of such default, unless such
default shall have been cured or waived; provided, however, that,
except in the case default in the payment of the principal or
interest (including any Additional Interest) on any Debenture, 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 the directors and/or Responsible Officers of the
Trustee determines in good faith that the withholding of such
notice is in the interests of the holders of such Debentures; and
provided, further, that in the case of any default of the character
specified in section 7.1(a)(iii), no such notice to holders of
Debentures need be sent until at least 30 days after the occurrence
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thereof. For the purposes of this Section 9.2, the term "default"
means any event which is, or after notice or lapse of time or both,
would become, an Event of Default with respect to the Debentures.
SECTION 9.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the President or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
default or an Event of Default, other than an Event of Default
specified in Section 7.1(a)(i); or (ii), unless and until it
receives written notification of such Event of Default from the
Company or by holders of at least 25% of the aggregate principal
amount of the Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or
waived) to exercise with respect to the Debentures such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not less
than a majority in principal amount of the Outstanding Debentures
(determined as provided in Section 10.4); provided, however, that
if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or
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liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 9.4. TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures shall
be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of
this Indenture, or for the use or application of any moneys
received by any paying agent other than the Trustee.
SECTION 9.5. MAY HOLD DEBENTURES.
The Trustee or any paying agent or registrar for the
Debentures, in its individual or any other capacity, may become the
owner or pledgee of Debentures with the same rights it would have
if it were not Trustee, paying agent or Debenture Registrar.
SECTION 9.6. MONEYS HELD IN TRUST.
Subject to the provisions of Section 13.5, all moneys received
by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 9.7. COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company
and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company shall pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence
or bad faith. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to
hold it harmless
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against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
of liability in the premises.
(b) The obligations of the Company under this Section 9.7 to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debentures upon all
property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular
Debentures.
SECTION 9.8. RELIANCE ON OFFICERS' CERTIFICATE.
Except as otherwise provided in Section 9.1, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the
faith thereof.
SECTION 9.9. DISQUALIFICATION: CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 9.10. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee with respect to the
Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 9.10, 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 Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Trustee shall resign
immediately in the manner and with the effect specified in Section
9.11.
SECTION 9.11. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at
any time resign by giving written notice thereof to the Company and
by transmitting notice of resignation by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register.
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Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Debentures by written
instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Debentures, or any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months may, subject to the provisions
of Section 9.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following shall occur
(i) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the Company
or by any Debentureholder who has been a bona fide holder of
a Debenture or Debentures for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.10 and shall fail
to resign after written request therefor by the Company or by
any such Debentureholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to all Debentures
and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to
the provisions of Section 9.9, unless the Trustee's duty to
resign is stayed as provided herein, any Debentureholder who
has been a bona fide holder of a Debenture or Debentures for
at least six months may, on behalf of that holder 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 Debentures at the time Outstanding may at any time remove
the Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Debentures pursuant to
any of the provisions of this Section 9.11 shall become effective
upon acceptance of appointment by the successor trustee as provided
in Section 9.12.
(e) Any successor trustee appointed pursuant to this Section
9.11 may be appointed with respect to the Debentures, and at any
time there shall be only one Trustee with respect to the
Debentures.
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SECTION 9.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
trustee with respect to the Debentures, every successor trustee so
appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on
the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) Upon request of any successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) of this
Section 9.12.
(c) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article IX.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.12, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register. If the Company fails
to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.
SECTION 9.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the
corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 9.9 and eligible under
the provisions of Section 9.10, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case
any Debentures shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Debentures.
SECTION 9.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the
Trust Indenture Act to the extent included therein.
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ARTICLE X.
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.1. EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate
principal amount of the Debentures may take any action (including
the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority
or specified percentage have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed
by such holders of Debentures in Person or by agent or proxy
appointed in writing.
(b) If the Company shall solicit from the Debentureholders
any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record date
for the determination of Debentureholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record
date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion of
Outstanding Debentures have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Debentures shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Debentureholders 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.
SECTION 10.2. PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1, proof of the
execution of any instrument by a Debentureholder (such proof shall
not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Debentures shall be sufficient
if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section 10.2 as it shall deem necessary.
SECTION 10.3. WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of
any Debenture, the Company, the Trustee, any paying agent, any
Authenticating Agent and any Debenture Registrar may deem and treat
the Person in whose name such Debenture shall be registered upon
the books of the Company as the absolute owner of such Debenture
(whether or not such Debenture shall be overdue and notwithstanding
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any notice of ownership or writing thereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment
of or on account of the principal of and interest on such Debenture
(subject to Section 2.3) and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any
Authenticating Agent nor any Debenture Registrar shall be affected
by any notice to the contrary.
SECTION 10.4. CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite aggregate
principal amount of Debentures have concurred in any direction,
consent or waiver under this Indenture, the Debentures that are
owned by the Company or any other obligor on the Debentures or by
any Person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the
Debentures shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debentures
that the Trustee actually knows are so owned shall be so
disregarded. The Debentures so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this
Section 10.4, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
SECTION 10.5. ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 10.1, of the taking of any action
by the holders of the majority or percentage in aggregate principal
amount of the Debentures specified in this Indenture in connection
with such action, any holder of a Debenture that is shown by the
evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 10.2,
revoke such action so far as concerns such Debenture. Except as
aforesaid any such action taken by the holder of any Debenture
shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or
in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debenture. Any action taken by
the holders of the majority or percentage in aggregate principal
amount of the Debentures specified in this Indenture in connection
with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Debentures.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein,
in the Debentures;
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(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to
or in place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of
the holders of all or any of the Debentures or to surrender any
right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Debentures, as
herein set forth;
(f) to make any change that does not adversely affect the
rights of any Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form and
terms and conditions of the Debentures, to establish the form of
any certifications required to be furnished pursuant to the terms
of this Indenture or of the Debentures, or to add to the rights of
the holders of the Debentures; or
(h) qualify or maintain the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise. Any
supplemental indenture authorized by the provisions of this Section
11.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debentures at the time
Outstanding, notwithstanding any of the provisions of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS.
With the consent (evidenced as provided in Section 10.1) of
the holders of not less than a majority in aggregate principal
amount of the Debentures at the time Outstanding, the Company, when
authorized by Board Resolutions, and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner not covered by Section 11.1 the
rights of the holders of the Debentures under this Indenture;
provided, however, that no such supplemental indenture shall
without the consent of the holders of each Debenture then
Outstanding and affected thereby, (i) extend the fixed maturity of
any Debentures, reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debenture so affected; or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture; provided
further, that if the Debentures are held by the Trust or a trustee
of the Trust, such supplemental indenture shall not be effective
until the holders of a majority in liquidation preference of Trust
Securities of the Trust shall have consented to such supplemental
indenture; provided further, that if the consent of the holder of
each Outstanding Debenture is required, such supplemental indenture
shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such supplemental indenture. It
shall not be necessary for the consent of the Debentureholders
affected thereby under this Section 11.2
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to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article XI, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the
holders of Debentures shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 11.4. DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
Debentures affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article XI, may bear a notation
in form approved by the Company, provided such form meets the
requirements of any exchange upon which the Debentures may be
listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so
modified as to conform, in the opinion of the Board of Directors of
the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Debentures then Outstanding.
SECTION 11.5. EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by their
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Debentureholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter
into such supplemental indenture. The Trustee, subject to the
provisions of Sections 9.1, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article XI is authorized or permitted by, and
conforms to, the terms of this Article XI and that it is proper for
the Trustee under the provisions of this Article XI to join in the
execution thereof.
(b) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of
this Section 11.5, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the Debentureholders
as their names and addresses appear upon the Debenture Register.
Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
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ARTICLE XII.
SUCCESSOR CORPORATION
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC.
Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not
affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company, as the case may be,
or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition
of the property of the Company, as the case may be, or its
successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with
the Company, as the case may be, or its successor or successors)
authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such
consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment, in the case of the
Company, of the principal of and interest on all of the Debentures,
according to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to
be kept or performed by the Company as the case may be, 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 entity formed by such consolidation, or into which
the Company, as the case may be, shall have been merged, or by the
entity which shall have acquired such property; (ii) in case the
Company consolidates with or merges into another Person or conveys
or transfers its properties and assets substantially then 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 (iii) immediately after giving effect thereto, an Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing.
SECTION 12.2. SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition 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, in the case of the Company, the due and punctual
payment of the principal of and interest on all of the Debentures
Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Company, as the case may be, such successor corporation shall
succeed to and be substituted for the Company, with the same effect
as if it had been named as the Company herein, and thereupon the
predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the property
of any other Person (whether or not affiliated with the Company).
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SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.
The Trustee, subject to the provisions of Section 9.1, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of
this Article XII.
ARTICLE XIII.
SATISFACTION AND DISCHARGE
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debentures theretofore authenticated
(other than any Debentures that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided in
Section 2.9) and Debentures for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated
and held in trust by the Company (and thereupon repaid to the
Company or discharged from such trust, as provided in Section
13.5); or (b) all such Debentures not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental
Obligations sufficient or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay at maturity or upon redemption all
Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due
to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company; then this Indenture
shall thereupon cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3 and 9.10, that
shall survive until the date of maturity or redemption date, as the
case may be, and Sections 9.6 and 13.5, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture.
SECTION 13.2. DISCHARGE OF OBLIGATIONS.
If at any time all Debentures not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as
described in Section 13.1 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient in the opinion of a
nationally recognized certified public accounting firm to pay at
maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by
the Company, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee,
the obligations of the Company under this Indenture shall cease to
be of further effect except for the provisions of Sections 2.3,
2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.10 and 13.5 hereof that shall
survive until such Debentures shall mature and be paid.
Thereafter, Sections 9.6 and 13.5 shall survive.
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SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST.
All monies or Governmental Obligations deposited with the
Trustee pursuant to Sections 13.1 or 13.2 shall be held in trust
and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own
paying agent), to the holders of the Debentures for the payment or
redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 13.4. PAYMENT OF MONIES HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this
Indenture, all moneys or Governmental Obligations then held by any
paying agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 13.5. REPAYMENT TO COMPANY.
Any monies or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company in trust,
for payment of principal of or interest on the Debentures that are
not applied but remain unclaimed by the holders of such Debentures
for at least two years after the date upon which the principal of
or interest on such Debentures shall have respectively become due
and payable, shall be repaid to the Company, as the case may be, on
May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the
Trustee shall be released from all further liability with respect
to such moneys or Governmental Obligations, and the holder of any
of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the
Company for the payment thereof.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1. NO RECOURSE.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of the Debentures, or for any claim
based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present
or future as such, of the Company or of any predecessor or
successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any
of them, because of the creation of the indebtedness hereby
authorized,
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or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures
or implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debentures
or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind
their respective successors and assigns, whether so expressed or
not.
SECTION 15.2. ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 15.3. SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by appropriate
authority of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the
Company, as the case may be, and as to any successor corporation.
SECTION 15.4. NOTICES.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of
Debentures to or on the Company may be given or served by being
deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company
with the Trustee), as follows: c/o Mississippi Valley Bancshares,
Inc., 700 Corporate Park Drive, Clayton, Missouri 63105, Attn:
Chief Financial Officer. Any notice, election, request or demand
by the Company or any Debentureholder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office
of the Trustee.
SECTION 15.5. GOVERNING LAW.
This Indenture and each Debenture shall be deemed to be a
contract made under the internal laws of the State of Missouri and
for all purposes shall be construed in accordance with the laws of
said State.
SECTION 15.6. TREATMENT OF DEBENTURES AS DEBT.
It is intended that the Debentures shall be treated as
indebtedness and not as equity for federal income tax purposes.
The provisions of this Indenture shall be interpreted to further
this intention.
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SECTION 15.7. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion of the Company provided for
in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture shall
include (1) a statement that the Person making such certificate or
opinion has read such covenant or condition; (2) a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as, in the
opinion of such Person, 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 15.8. PAYMENTS ON BUSINESS DAYS.
In any case where the date of maturity of interest or
principal of any Debenture or the date of redemption of any
Debenture shall not be a Business Day, then payment of interest or
principal may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such
nominal date.
SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 15.10. COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 15.11. SEPARABILITY.
In case any one or more of the provisions contained in this
Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Indenture or of the Debentures, but this
Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.
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SECTION 15.12. ASSIGNMENT.
The Company shall have the right at all times to assign any of
its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company shall remain
liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties
thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS.
The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee of the Trust, if the Property
Trustee fails to enforce its rights under this Indenture as the
holder of the Debentures held as the assets of the Trust, any
holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Property Trustee's
rights under this Indenture without first instituting any legal
proceedings against such Property Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal on the
Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such
holder of the principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder on or after the respective due
date specified in the Debentures.
ARTICLE XVI.
SUBORDINATION OF DEBENTURES
SECTION 16.1. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of
Debentures issued hereunder by such holder's acceptance thereof
likewise covenants and agrees, that all Debentures shall be issued
subject to the provisions of this Article XVI; and each holder of
a Debenture, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and
interest on all Debentures issued hereunder shall, to the extent
and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior
Debt, Subordinated Debt and Additional Senior Obligations
(collectively, "Senior Indebtedness") to the extent provided
herein, whether outstanding at the date of this Indenture or
thereafter incurred. No provision of this Article XVI shall
prevent the occurrence of any default or Event of Default
hereunder.
SECTION 16.2. DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR
ADDITIONAL SENIOR OBLIGATIONS.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Company, or in the
event that the maturity of any Senior Indebtedness of the Company
has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal
(including redemption payments) of or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee when such payment is prohibited by the
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preceding sentence of this Section 16.2, 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 of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified
in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets
of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the
Company shall first be paid in full, or payment thereof provided
for in money in accordance with its terms, before any payment is
made by the Company on account of the principal or interest on the
Debentures; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders of
the Debentures or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XVI, shall be
paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the holders of the Debentures or by the Trustee
under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such
holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or
their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
such Senior Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness, before any payment or
distribution is made to the holders of Debentures or to the
Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to 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, and their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full in
money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
(c) For purposes of this Article XVI, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XVI
with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the
time be
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outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such
reorganization or readjustment; and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article XII shall not
be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 16.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XII.
Nothing in Section 16.2 or in this Section 16.3 shall apply to
claims of, or payments to, the Trustee under or pursuant to
Section 9.7.
SECTION 16.4. SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness
of the Company, the rights of the holders of the Debentures shall
be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property
or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of and interest on the
Debentures 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 holders of the Debentures or the Trustee would be entitled
except for the provisions of this Article XVI, and no payment over
pursuant to the provisions of this Article XVI to or for the
benefit of the holders of such Senior Indebtedness by holders of
the Debentures or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company,
and the holders of the Debentures, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article XVI are and are
intended solely for the purposes of defining the relative rights of
the holders of the Debentures, on the one hand, and the holders of
such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in
this Indenture or in the Debentures is intended to or shall impair,
as between the Company, its creditors (other than the holders of
Senior Indebtedness of the Company), and the holders of the
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the
principal of and interest on the Debentures as and when the same
shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of
the Debentures and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as
the case may be, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XVI of
the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received
upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article XVI, the Trustee, subject to the
provisions of Article IX, and the holders of the Debentures shall
be entitled to conclusively rely upon any order or decree made by
any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior
Indebtedness and other
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indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XVI.
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of Debentures by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article XVI and appoints the Trustee
such holder's attorney-in-fact for any and all such purposes.
SECTION 16.6. NOTICE BY THE COMPANY.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debentures pursuant to the provisions
of this Article XVI. Notwithstanding the provisions of this
Article XVI or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debentures pursuant to the provisions
of this Article XVI, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company
or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 9.1, 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 16.6 at least two Business Days
prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money
and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1,
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 Company (or a trustee on behalf of such
holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder
or holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
Person as a holder of such Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XVI, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such
Senior 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 XVI, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 16.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR
INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article XVI 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
47
<PAGE> 53
holder. The Trustee's right to compensation and reimbursement of
expenses as set forth in Section 9.7 shall not be subject to the
subordination provisions of the Article XVI.
(b) With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in
this Article XVI, and no implied covenants or obligations with
respect to the holders of such Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section 9.1, the
Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to holders of
Debentures, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article XVI or otherwise.
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the consent
of or notice to the Trustee or the holders of the Debentures,
without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in
this Article XVI or the obligations hereunder of the holders of the
Debentures to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of
such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
48
<PAGE> 54
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
MISSISSIPPI VALLEY BANCSHARES, INC.
By: -------------------------------
Name: -------------------------------
Title: -------------------------------
Attest:
- -------------------------------
STATE STREET BANK AND TRUST COMPANY,
as trustee
By: -------------------------------
Name: -------------------------------
Title: -------------------------------
Attest:
- -------------------------------
49
<PAGE> 55
STATE OF MISSOURI )
) ss:
COUNTY OF ST. LOUIS )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of MISSISSIPPI VALLEY BANCSHARES,
INC., and that the seal affixed to said instrument is the corporate
seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its board of
directors and said ------------------------------, acknowledged
said instrument to be the free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day and
year last above written.
----------------------------------
Notary Public
[seal] My term expires: -----------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
CITY OF --------------- )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of STATE STREET BANK AND TRUST
COMPANY, and that the seal affixed to said instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of its
board of directors and said ------------------------------,
acknowledged said instrument to be the free act and deed of said
corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day and
year last above written.
----------------------------------
Notary Public
[seal] My term expires: -----------------
50
<PAGE> 56
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. ----------------- $ ----------
CUSIP No. -----------
MISSISSIPPI VALLEY BANCSHARES, INC.
FLOATING RATE SUBORDINATED DEBENTURE
DUE MARCH 31, 2027
Mississippi Valley Bancshares, Inc., a Missouri corporation
(the "Company," which term includes any successor corporation under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to, State Street Bank and Trust Company, as
Property Trustee, or registered assigns, the principal sum of
- --------------------------------------------------------------
- --------------------- ($----------) on March 31, 2027 (the "Stated
Maturity"), and to pay interest on said principal sum from
- ------------, 1997, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year commencing June 30, 1997, at a rate per
annum determined by reference to 3-Month Treasury, determined as
described below, plus a margin of % during any period
beginning on, and including, the date of original issuance, and
ending on, but excluding, the first Interest Payment Date, and each
successive period beginning on, and including, an Interest Payment
Date, and ending on, but excluding, the next succeeding Interest
Payment Date (a "Distribution Period") applied to the principal
amount thereof, until the principal hereof shall have become due
and payable, and on any overdue principal and (without duplication)
on any overdue installment of interest at the same rate per annum
compounded quarterly. 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. The amount of interest for any
partial period shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Debenture is not
a business day, then payment of interest payable on such date shall
be made on the next succeeding day that is a business day (and
without any interest or other payment in respect of any such delay)
with the same force and effect as if made on such date. "3-Month
Treasury" means the most recent yield on United States of America
Treasury Constant Maturities adjusted to a constant maturity of
three (3) months, reported by the Federal Reserve. 3-Month
Treasury, with respect to any Distribution Period, will be
calculated by the Property Trustee as follows: (i) On the second
Business Day preceding the commencement of such Distribution Period
(each, a "Determination Date"), 3-Month Treasury will be the
current yield for United States of America Treasury Constant
Maturities adjusted to a constant maturity of three (3) months (the
Index Maturity), which appears on the display designated as Page
5 on the Dow Jones Telerate Service (or such other pages as may
replace Page 5 on that service for the purpose of displaying United
States Treasury and Money Markets) ("Telerate Page 5") as of 11:00
a.m., New York time on the Determination Date. If such current
yield is not displayed on Telerate Page 5 at such times, 3-Month
Treasury with respect to such
Exhibit A-1
<PAGE> 57
Distribution Period will be determined as described in (b) below; (b)
With respect to a Determination Date on which no such current yield
appears on Telerate Page 5 as described in (a) above, 3-Month Treasury
will be the current yield for the Index Maturity which appears on the
display designated as " " on the Reuters Monitor Money Market
Rates Service (or such other page as may replace the page on
that service for the purpose of displaying United States Treasury
rates) ("Reuters Screen Treasury Page") as of 11:00 a.m., New York
time, on the Determination Date. If, in turn, such current yield is
not displayed on the Reuters Screen Treasury Page at such time, 3-
Month Treasury for such Distribution Period will be determiend from
the most recently issued Federal Reserve Statistical Release Series
H.15 (519) issued on or before such Determination Date, or as then
currently furnished or made available by the Federal Reserve if
such Series is no longer published; and if, on any Determination
Date, the Property Trustee is required but unable to determine 3-
Month Treasury in the manner provided in paragraphs (a) and (b)
above, 3-Month Treasury for such Distribution Period will be 3-
Month Treasury as determined on the previous Determination Date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, 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 last month of the calendar quarter in which
such Interest Payment Date occurs unless otherwise provided in the
Indenture. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special
record date to be fixed by the Property Trustee for the payment of
such defaulted interest, notice whereof shall be given to the
registered holders of the Debentures 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 Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of and the interest on
this Debenture shall be payable at the office or agency of the
Property 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 Company by check mailed to the registered holder at
such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this
Debenture is the Property Trustee, the payment of the principal of
and interest on this Debenture shall be made at such place and to
such account as may be designated by the Property Trustee.
The Stated Maturity may be shortened at any time by the
Company to any date not earlier than March 31, 2002, subject to the
Company having received prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of
the Federal Reserve. Such date may also be extended at any time at
the election of the Company for one or more periods, but in no
event to a date later than March 31, 2046, subject to certain
limitations described in the Indenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness,
and this Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Debenture, by
accepting the same, (a) agrees to and shall be bound by such
provisions; (b) authorizes and directs the Property 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 Property 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
Exhibit A-2
<PAGE> 58
herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by
each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Property Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated
MISSISSIPPI VALLEY BANCSHARES, INC.
By: -----------------------------
Name: -----------------------------
Title: -----------------------------
Attest:
By: ---------------------
Name: ---------------------
Title: ---------------------
Exhibit A-3
<PAGE> 59
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the
within-mentioned Indenture.
Dated:
STATE STREET BANK AND TRUST COMPANY, -----------------------
as Trustee or Authentication Agent
By -------------------------------- By --------------------
Authorized Signatory
Exhibit A-4
<PAGE> 60
[FORM OF REVERSE OF DEBENTURE]
FLOATING RATE SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the
Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued under and
pursuant to an Indenture dated as of ----------, 1997 (the
"Indenture") duly executed and delivered between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee"), to
which Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Debentures. The Debentures are limited in aggregate principal
amount as specified in the Indenture.
Because of the occurrence and continuation of a Special Event,
in certain circumstances, this Debenture may become due and payable
at the principal amount together with any interest accrued thereon
(the "Redemption Price"). The Redemption Price shall be paid prior
to 12:00 noon, Eastern Standard Time, time, on the date of such
redemption or at such earlier time as the Company determines. The
Company shall have the right to redeem this Debenture at the option
of the Company, without premium or penalty, in whole or in part at
any time on or after March 31, 2002 (an "Optional Redemption"), or
at any time in certain circumstances upon the occurrence of a
Special Event, at a Redemption Price equal to 100% of the principal
amount plus any accrued but unpaid interest, to the date of such
redemption. Any redemption pursuant to this paragraph shall be
made upon not less than 30 days nor more than 60 days notice, at
the Redemption Price. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the
Debentures shall be redeemed pro rata or by lot or by any other
method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof shall
be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the
Debentures may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debentures at the
time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the
fixed maturity of the Debentures except as provided in the
Indenture, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debenture so affected; or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture, without the
consent of the holders of each Debenture then outstanding and
affected thereby. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount
of the Debentures at the time outstanding, on behalf of all of the
holders of the Debentures, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences,
Exhibit A-5
<PAGE> 61
except a default in the payment of the principal of or interest on any
of the Debentures. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal and interest on this Debenture at the time and place and
at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive quarters
(each, an "Extended Interest Payment Period"), at the end of which
period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any
such Extended Interest Payment Period, the Company may further
extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further
extensions thereof shall not exceed 20 consecutive quarters. At
the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new
Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered holder hereof on the Debenture Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory
to the Company or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge shall be
made for any such transfer, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the
Debenture Registrar may deem and treat the registered holder hereof
as the absolute owner hereof (whether or not this Debenture shall
be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal
hereof and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any
Debentures Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue 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.
Exhibit A-6
<PAGE> 62
The Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit A-7
<PAGE> 1
CERTIFICATE OF TRUST
OF
MVBI CAPITAL TRUST
THIS CERTIFICATE OF TRUST OF MVBI CAPITAL TRUST (the "Trust"), dated
February 14, 1997, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, Linn H. Bealke, Paul M. Strieker and
Carol Dolenz, each an individual, as trustees, to form a business trust under
the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is MVBI Capital Trust.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on February
14, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY, as trustee
By: /s/ Donald G. MacKelcan
---------------------------------
Name: Donald G. MacKelcan
-------------------------------
Title: Assistant Vice President
------------------------------
/s/ Linn H. Bealke
--------------------------------------
Linn H. Bealke, as Trustee
/s/ Paul M. Strieker
--------------------------------------
Paul M. Strieker, as Trustee
/s/ Carol Dolenz
--------------------------------------
Carol Dolenz, as Trustee
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 02/14/1997
971049874 - 2718286
<PAGE> 1
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of February 14, 1997 (this "Trust
Agreement"), among (i) Mississippi Valley Bancshares, Inc., a Missouri
corporation (the "Depositor"), (ii) Wilmington Trust Company, a Delaware
banking corporation, as trustee, and (iii) Linn H. Bealke, Paul M. Strieker
and Carol Dolenz, each an individual, as trustees (each of such trustees in
(ii) and (iii) a "Trustee" and collectively, the "Trustees"). The
Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "MVBI
Capital Trust" in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over the
Trustees the sum of $10.00. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with The Nasdaq
Stock Market's National Market or a national stock exchange (each, an
"Exchange") and execute on behalf of the Trust one or more listing
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement
<PAGE> 2
relating to the Preferred Securities, among the Trust, the Depositor and the
several Underwriters named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky
laws, to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or his capacity as a Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that Wilmington Trust Company in its capacity as a Trustee of
the Trust shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and Linn
H. Bealke, Paul M. Strieker and Carol Dolenz, each as Trustees and not in
their individual capacities, hereby constitutes and appoints Linn H. Bealke,
Paul M. Strieker and Carol Dolez, and each of them, as its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or
such Trustees' name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, the Exchange and administrators of the state securities
or blue sky laws, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Depositor or such Trustee might or could to in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be four and thereafter the
number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or
decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustees may resign upon 30 days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
[Signature Pages On Next Page]
1
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
MISSISSIPPI VALLEY BANCSHARES, INC.
as Depositor
By: /s/ Linn H. Bealke
-----------------------------------
Name: Linn H. Bealke
Title: President
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ Donald G. MacKelcan
-----------------------------------
Name: Donald G. MacKelcan
---------------------------------
Title: Assistant Vice President
--------------------------------
/s/ Linn H. Bealke
--------------------------------------
LINN H. BEALKE
as Trustee
/s/ Paul M. Strieker
--------------------------------------
PAUL M. STRIEKER
as Trustee
/s/ Carol Dolenz
--------------------------------------
CAROL DOLENZ
as Trustee
2
<PAGE> 1
================================================================================
MVBI CAPITAL TRUST
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
MISSISSIPPI VALLEY BANCSHARES, INC., AS DEPOSITOR
STATE STREET BANK AND TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF -----------, 1997
================================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINED TERMS 1
Section 101. Definitions 1
ARTICLE II ESTABLISHMENT OF THE TRUST 9
Section 201. Name 9
Section 202. Office of the Delaware Trustee; Principal Place of Business 9
Section 203. Initial Contribution of Trust Property; Organizational Expenses 9
Section 204. Issuance of the Preferred Securities 10
Section 205. Issuance of the Common Securities; Subscription and Purchase of
Debentures 10
Section 206. Declaration of Trust 10
Section 207. Authorization to Enter into Certain Transactions 11
Section 208. Assets of Trust 14
Section 209. Title to Trust Property 14
ARTICLE III PAYMENT ACCOUNT 14
Section 301. Payment Account 14
ARTICLE IV DISTRIBUTIONS; REDEMPTION 14
Section 401. Distributions 14
Section 402. Redemption 16
Section 403. Subordination of Common Securities 18
Section 404. Payment Procedures 18
Section 405. Tax Returns and Reports 19
Section 406. Payment of Taxes, Duties, etc. of the Trust 19
Section 407. Payments Under Indenture 19
ARTICLE V TRUST SECURITIES CERTIFICATES 19
Section 501. Initial Ownership 19
Section 502. The Trust Securities Certificates 19
Section 503. Execution, Authentication and Delivery of Trust Securities
Certificates 20
Section 504. Registration of Transfer and Exchange of Preferred Securities
Certificates 20
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates 21
Section 506. Persons Deemed Securityholders 21
Section 507. Access to List of Securityholders' Names and Addresses 22
Section 508. Maintenance of Office or Agency 22
Section 509. Appointment of Paying Agent 22
Section 510. Ownership of Common Securities by Depositor 23
Section 511. Preferred Securities Certificates 23
Section 512. [Intentionally Omitted] 23
Section 513. [Intentionally Omitted] 23
Section 514. Rights of Securityholders 23
i
<PAGE> 3
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING 24
Section 601. Limitations on Voting Rights 24
Section 602. Notice of Meetings 25
Section 603. Meetings of Preferred Securityholders 25
Section 604. Voting Rights 26
Section 605. Proxies, etc. 26
Section 606. Securityholder Action by Written Consent 26
Section 607. Record Date for Voting and Other Purposes 26
Section 608. Acts of Securityholders 26
Section 609. Inspection of Records 27
ARTICLE VII REPRESENTATIONS AND WARRANTIES 27
Section 701. Representations and Warranties of the Bank and the Property Trustee 27
Section 702. Representations and Warranties of the Delaware Bank and the Delaware
Trustee 28
Section 703. Representations and Warranties of Depositor 29
ARTICLE VIII TRUSTEES 30
Section 801. Certain Duties and Responsibilities 30
Section 802. Certain Notices 31
Section 803. Certain Rights of Property Trustee 32
Section 804. Not Responsible for Recitals or Issuance of Securities 33
Section 805. May Hold Securities 34
Section 806. Compensation; Indemnity; Fees 34
Section 807. Corporate Property Trustee Required; Eligibility of Trustees 34
Section 808. Conflicting Interests 35
Section 809. Co-Trustees and Separate Trustee 35
Section 810. Resignation and Removal; Appointment of Successor 36
Section 811. Acceptance of Appointment by Successor 37
Section 812. Merger, Conversion, Consolidation or Succession to Business 38
Section 813. Preferential Collection of Claims Against Depositor or Trust 38
Section 814. Reports by Property Trustee 38
Section 815. Reports to the Property Trustee 39
Section 816. Evidence of Compliance with Conditions Precedent 39
Section 817. Number of Trustees 39
Section 818. Delegation of Power 39
Section 819. Voting 40
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER 40
Section 901. Termination Upon Expiration Date 40
Section 902. Early Termination 40
Section 903. Termination 40
Section 904. Liquidation 41
Section 905. Mergers, Consolidations, Amalgamations or Replacements of the Trust 42
ARTICLE X MISCELLANEOUS PROVISIONS 43
Section 1001. Limitation of Rights of Securityholders 43
Section 1002. Amendment 43
ii
<PAGE> 4
Section 1003. Separability 44
Section 1004. Governing law 44
Section 1005. Payments Due on Non-Business Day 44
Section 1006. Successors 45
Section 1007. Headings 45
Section 1008. Reports, Notices and Demands 45
Section 1009. Agreement Not to Petition 45
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act 46
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture 46
Exhibit A Certificate of Trust
Exhibit B [Intentionally Omitted]
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
</TABLE>
iii
<PAGE> 5
<TABLE>
CROSS-REFERENCE TABLE
<CAPTION>
Section of Section of
Trust Indenture Act Amended and Restated
of 1939, as amended Trust Agreement
- ------------------- ----------------
<S> <C>
310(a)(1) 807
310(a)(2) 807
310(a)(3) 807
310(a)(4) 207(a)(ii)
310(b) 808
311(a) 813
311(b) 813
312(a) 507
312(b) 507
312(c) 507
313(a) 814(a)
313(a)(4) 814(b)
313(b) 814(b)
313(c) 1008
313(d) 814(c)
314(a) 815
314(b) Not Applicable
314(c)(1) 816
314(c)(2) 816
314(c)(3) Not Applicable
314(d) Not Applicable
314(e) 101, 816
315(a) 801(a), 803(a)
315(b) 802, 1008
315(c) 801(a)
315(d) 801, 803
316(a)(2) Not Applicable
316(b) Not Applicable
316(c) 607
317(a)(1) Not Applicable
317(a)(2) Not Applicable
317(b) 509
318(a) 1010
</TABLE>
Note: This Cross-Reference Table does not constitute part of this Agreement
and should not affect the interpretation of any of its terms or provisions.
iv
<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ----------,
1997, among (i) MISSISSIPPI VALLEY BANCSHARES, INC., a Missouri
corporation (including any successors or assigns, the "Depositor"),
(ii) STATE STREET BANK AND TRUST COMPANY, a trust company duly
organized and existing under the laws of the Commonwealth of Massachusetts,
as property trustee (the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee," and, in its separate corporate capacity and
not in its capacity as Delaware Trustee, the "Delaware Bank") (iv) LINN H.
BEALKE, an individual, PAUL M. STRIEKER, an individual, and CAROL
DOLENZ, an individual, each of whose address is c/o Mississippi Valley
Bancshares, Inc., 700 Corporate Park Drive, St. Louis, Missouri 63105 (each
an "Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees"), and (v) the several Holders (as
hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and Linn H. Bealke, Paul
M. Strieker and Carol Dolenz, each as an Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of February 14, 1997 (the "Original Trust Agreement"),
and by the execution and filing by the Delaware Trustee, the Depositor and
the Administrative Trustees with the Secretary of State of the State of
Delaware of the Certificate of Trust, filed on February 14, 1997, the form of
which is attached as Exhibit A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by the
Trust (as defined herein) to the Depositor; (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures (as defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Securityholders (as defined
herein), hereby amends and restates the Original Trust Agreement in its
entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 101. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE> 7
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Linn H. Bealke, Paul M. Strieker
and Carol Dolenz, solely in his or her capacity as Administrative Trustee of
the Trust formed and continued hereunder and not in his or her individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10%
or more of the outstanding voting securities or other ownership interests of
the specified Person, any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control
with the specified Person; (d) a partnership in which the specified Person is
a general partner; (e) any officer or director of the specified Person; and
(f) if the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Preferred Securities appointed by the Property Trustee pursuant to
Section 503.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
2
<PAGE> 8
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in
respect of such Person under the United States Bankruptcy Code of 1978, as
amended, or any other similar applicable federal or state law, and the
continuance of any such decree or order unvacated and unstayed for a period
of 90 days; or the commencement of an involuntary case under the United
States Bankruptcy Code of 1978, as amended, in respect of such Person, which
shall continue undismissed for a period of 90 days or entry of an order for
relief in such case; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment on the ground of insolvency
or bankruptcy of a receiver, custodian, liquidator, trustee or assignee in
bankruptcy or insolvency of such Person or of its property, or for the
winding up or liquidation of its affairs, and such decree or order shall have
remained in force unvacated and unstayed for a period of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a
bankruptcy proceeding against it, or the filing by such Person of a petition
or answer or consent seeking liquidation or reorganization under the United
States Bankruptcy Code of 1978, as amended, or other similar applicable
Federal or State law, or the consent by such Person to the filing of any such
petition or to the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of such Person or of its property, or shall make a general
assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board
of Directors or officers of the Depositor to which authority to act on behalf
of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the appropriate
Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in The City of New York are authorized or required
by law, executive order or regulation to remain closed, or a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of
the Debenture Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision 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 such proposed change,
pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Depositor's ability to treat the
Preferred Securities (or any substantial portion thereof) as "Tier I Capital"
(or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve Bank, as then in effect and applicable to
the Depositor.
3
<PAGE> 9
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office
at the date hereof, in each such case, is located at Two International Place,
4th Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Department.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the
Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1
of the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company, a
banking corporation organized under the laws of the Commonwealth of
Massachusetts and any successor thereto, as trustee under the Indenture.
"Debentures" means the $---------- aggregate principal amount of the
Depositor's Floating Rate Subordinated Debentures due 2027, issued pursuant
to the Indenture.
"Definitive Preferred Securities Certificates" means the Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 513.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may be amended
from time to time.
4
<PAGE> 10
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Determination Date" has the meaning specified in Section 401(e).
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the payment of
any Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Trust or the Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance of which or the
breach of which is dealt with in clause (b) or (c), above) and continuation
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 25% in aggregate liquidation preference of the
Outstanding Preferred Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extended Interest Payment Period" has the meaning specified in
Section 4.1 of the Indenture.
5
<PAGE> 11
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor and State Street Bank and Trust Company, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Indenture, dated as of ----------------, 1997,
between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture and the proceeds of which shall be used to pay the
Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with
a termination or 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. Each Debenture distributed pursuant
to clause (b) above shall carry with it accumulated interest in an amount
equal to the accumulated and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One
of the officers signing an Officers' Certificate given pursuant to
Section 816 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
6
<PAGE> 12
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be counsel for the Trust, the Property Trustee, the Delaware Trustee or
the Depositor, but not an employee of any thereof, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or
any Paying Agent for the Holders of such Preferred Securities; provided that,
if such Preferred Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 504, 505, 511 and 513; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows
to be so owned shall be so disregarded; and (b) the foregoing shall not apply
at any time when all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to the Depositor or any
Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures shall be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with
Sections 401 and 402.
7
<PAGE> 13
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization
or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, paid by the Depositor upon the
concurrent redemption of a Like Amount of Debentures, allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"3-Month Treasury" shall have the meaning specified in Section 401(e).
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment
or supplement, respectively.
8
<PAGE> 14
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or owing
to, the Payment Account; and (d) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed
to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
- ---------------- and amended as of ----------------, among the Trust, the
Depositor and the Underwriters named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 201. NAME.
The Trust created and continued hereby shall be known as "MVBI Capital
Trust," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o Mississippi Valley Bancshares,
Inc., 700 Corporate Park Drive, Clayton, Missouri 63105.
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly
9
<PAGE> 15
reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 204. ISSUANCE OF THE PREFERRED SECURITIES.
On ----------------, the Depositor and an Administrative Trustee, on
behalf of the Trust and pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. On ----------------, the Depositor
and an Administrative Trustee, on behalf of the Trust and pursuant to the
Original Trust Agreement, executed and delivered the First Amendment to the
Underwriting Agreement. Contemporaneously with the execution and delivery
of this Trust Agreement, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 502 and deliver in accordance with
the Underwriting Agreement, Preferred Securities Certificates, registered in
the name of the Persons entitled thereto, in an aggregate amount of
$---------- Preferred Securities having an aggregate Liquidation Amount of
$---------- against receipt of the aggregate purchase price of such Preferred
Securities of $----------, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 502 and deliver to the Depositor, Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of Common Securities having an aggregate Liquidation Amount
of $--------- against payment by the Depositor of such amount.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount equal to $---------, and, in
satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of
$----------.
SECTION 206. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees
of the Trust, to have all the rights, powers and duties to the extent set
forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it shall hold the Trust Property in trust upon
and subject to the conditions set forth herein for the benefit of the
Securityholders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one
of the Trustees of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act.
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SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth
in paragraph (b) of this Section 207 and Article VIII, and in accordance with
the following provisions (i) and (ii), the Administrative Trustees shall have
the authority to enter into all transactions and agreements determined by the
Administrative Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Administrative Trustees under
this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting
singly or jointly, shall have the power and authority to act on behalf of the
Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement and such
other agreements or documents as may be necessary or desirable in connection
with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust Agreement as
a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities
upon The Nasdaq Stock Market's National Market or such securities exchange or
exchanges as shall be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the preparation and filing
of all periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust Agreement;
(G) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created; and
(I) the taking of any action incidental to the foregoing
as the Administrative Trustees may from time to time determine is necessary
or advisable to give effect to
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the terms of this Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance with the
terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on
any particular Securityholder);
(J) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
207(a)(ii), the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in Section
207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement; (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
or otherwise vary the investment of a Securityholder any of the Trust
Property or interests therein, including to Securityholders, except as
expressly provided herein; (iii) take any action that would cause the Trust
to fail or cease to qualify
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as a "grantor trust" for United States federal income tax purposes; (iv) incur
any indebtedness for borrowed money or issue any other debt; or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following
(and any actions taken by the Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities and the Debentures,
including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or, register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust or on behalf of
the Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to The Nasdaq Stock Market's National
Market or a national stock exchange or other organizations for listing upon
notice of issuance of any Preferred Securities and to file or cause an
Administrative Trustee to file thereafter with such exchange or organization
such notifications and documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on
Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust shall not be deemed to
be an "investment company" required to be registered under the Investment
Company Act, shall be classified as a "grantor trust" and not as an
association taxable as a corporation for United States federal income tax
purposes and so that the Debentures shall be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
subject to Section 1002, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law or this
Trust Agreement, that each of the Depositor and
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the Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes.
SECTION 208. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
SECTION 209. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee for the benefit of the Securityholders in accordance
with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 301. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment Account
for the exclusive benefit of the Securityholders and for distribution as
herein provided, including (and subject to) any priority of payments provided
for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 401. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from
- ------------, 1997, and, except during any Extended Interest Payment Period
with respect to the Debentures, shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing on
June 30, 1997. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay) with
the same force and effect as if made on
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such date (each date on which distributions are payable in accordance with this
Section 401(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and, as a practical matter, the Distributions on the
Trust Securities shall be payable at a rate per annum determined by reference
to 3-Month Treasury, determined as described below, plus a margin of %
applied to the Liquidation Amount of the Trust Securities during any period
beginning on, and including, the date of original issuance, and ending on,
but excluding, the first Interest Payment Date, and each successive period
beginnin on, and including, an Interest Payment Date, and ending on, but
excluding, the next succeeding Interest Payment Date (a "Distribution
Period") applied to the principal amount thereof. The amount of
Distributions payable for any full period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30 day months. During any Extended Interest
Payment Period with respect to the Debentures, Distributions on the Preferred
Securities shall be deferred for a period equal to the Extended Interest
Payment Period. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
and immediately available by 12:30 p.m. on each Distribution Date in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record date,
which shall be the 15th day of the month in which the Distribution is
payable.
(e) "3-Month Treasury" means the yield on United States of America
Treasury constant maturities, adjusted to a constant maturity of three (3)
months, reported by the Federal Reserve. 3-Month Treasury, with respect to
any Distribution Period, will be determined by the Property Trustee as
follows:
(i) On the second Business Day preceding the commencement of
such Distribution Period (each, a "Determination Date"), 3-Month
Treasury will be the current yield for United States of America
Treasury constant maturities, adjusted to a constant maturity of three
(3) months, which appears on the applicable
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Federal Reserve Statistical Release Series H.15 (519) which includes
data for such Determination Date, or as then currently furnished or
made available by the Federal Reserve if such Series is no longer
published.
(ii) If, on any Determination Date, the Property Trustee is
required but unable to determine 3-Month Treasury in the manner
provided in paragraph (i) above, 3-Month Treasury for such
Distribution Period will be 3-Month Treasury as determined on the
previous Determination Date.
(f) The Property Trustee will notify the Company, the Debenture
Trustee and any securities exchange or interdealer quotation system on which
the Preferred Securities are listed, of the Distribution Rate and the
Distribution Date for each Distribution Period, in each case as soon as
practicable after the determination thereof but in no event later than the
seventh Business Day of the relevant Distribution Period. Failure to
notify the Company, the Debenture Trustee or any securities exchange or
interdealer quotation system, or any defect in said notice, shall not
affect the obligation of the Company to make payment on the Debentures at
the applicable Distribution Rate. Any error in the calculation of the
Distribution Rate by the Property Trustee may be corrected at any time by
notice delivered as above provided.
(g) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the purposes
of the provisions relating to the payment and calculation of Distributions on
the Debentures and the Preferred Securities and the Debentures by the
Debenture Trustee or the Property Trustee will (in the absence of willful
default, bad faith or manifest error) be binding on MVBI Capital, the
Company, and all of the holders of the Preferred Securities, and no liability
will (in the absence of willful default, bad faith or manifest error) attach
to the Debenture Trustee or the Property Trustee in connection with the
exercise or non-exercise by either of them of their respective powers, duties
and discretion.
SECTION 402. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Trust shall be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Securities Register. The
Property Trustee shall have no responsibility for the accuracy of any CUSIP
number contained in such notice. All notices of redemption shall state:
(i) the Redemption Date;
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(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Trust Security to be redeemed and that
Distributions thereon shall cease to accumulate on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has immediately available funds then on hand and
available in the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 402(c), the Property Trustee shall
deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and shall give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof upon surrender
of their Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon
the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption shall cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable
on or prior to the Redemption Date, but without interest, and such Securities
shall cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any
Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities shall continue to accumulate, at the
then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date shall be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the Securities Register
for the Trust Securities on the relevant record date, which shall be the date
15 days prior to the relevant Redemption Date.
(f) Subject to Section 403(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common
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Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Property Trustee from the outstanding Preferred Securities not previously
called for redemption, by such method (including, without limitation, by lot)
as the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
SECTION 403. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the
Common Securities and the Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on
or prior thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding Preferred Securities then
called for redemption, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due
and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Securities shall be
deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities shall have been cured,
waived or otherwise eliminated. Until any such Event of Default under this
Trust Agreement with respect to the Preferred Securities shall have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the Holders of the Preferred Securities and not the Holder of
the Common Securities, and only the Holders of the Preferred Securities shall
have the right to direct the Property Trustee to act on their behalf.
SECTION 404. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register. Payments in respect of the Common Securities
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shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Common Securityholder.
SECTION 405. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in respect
of the Trust. In this regard, the Administrative Trustees shall (a) prepare
and file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable
year of the Trust; and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the appropriate Internal Revenue Service
form required to be furnished to such Securityholder or the information
required to be provided on such form. The Administrative Trustees shall
provide the Depositor with a copy of all such returns and reports promptly
after such filing or furnishing. The Property Trustee shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Interest (as defined in
Section 1.1 of the Indenture), the Property Trustee, at the direction of an
Administrative Trustee or the Depositor, shall promptly pay any taxes, duties
or governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Trust by the United States or any other taxing authority.
SECTION 407. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 514(b) or (c)
hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 501. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 203 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
SECTION 502. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $25 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have
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been affixed, authorized to sign on behalf of the Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or did not hold
such offices at the date of delivery of such Trust Securities Certificates.
A transferee of a Trust Securities Certificate shall become a Securityholder,
and shall be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Sections 504, 511 and 513.
SECTION 503. EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES.
(a) On the Closing Date and on the date on which the Underwriter
exercises the option, as applicable (the "Option Closing Date"), the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 204 and 205, to be
executed on behalf of the Trust by at least one of the Administrative
Trustees and delivered to or upon the written order of the Depositor, signed
by its Chief Executive Officer, President, any Vice President, the Treasurer
or any Assistant Treasurer without further corporate action by the Depositor,
in authorized denominations.
(b) A Preferred Securities Certificate 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
Preferred Securities Certificate has been authenticated under this Trust
Agreement. Each Preferred Security Certificate shall be dated the date of
its authentication.
Upon the written order of the Trust signed by the Administrative
Trustee, the Property Trustee shall authenticate and make available for
delivery the Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to
the Trust to authenticate the Preferred Securities. An Authenticating Agent
may authenticate the Preferred Securities whenever the Property Trustee may
do so. Each reference in this Trust Agreement 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 Company or
the Trust.
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 508, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (herein referred to as the
"Securities Register") in which the registrar designated by the Depositor
(the "Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 508, the Administrative Trustees or any one of them shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall
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not be required to register the transfer of any Preferred Securities that have
been called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities Certificates to
be exchanged at the office or agency maintained pursuant to Section 508.
(c) Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Property Trustee in accordance with its customary
practice. The Trust shall not be required to (i) issue, register the transfer
of, or exchange any Preferred Securities during a period beginning at the
opening of business 15 calendar days before the date of mailing of a notice
of redemption of any Preferred Securities called for redemption and ending at
the close of business on the day of such mailing; or (ii) register the
transfer of or exchange any Preferred Securities so selected for redemption,
in whole or in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
(d) No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate; and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may
be required by them to save each of them harmless, then in the absence of
notice that such Trust Securities Certificate shall have been acquired by a
bona fide purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust shall execute and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section 505, the Administrative
Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section 505 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 506. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered
in the Securities Register as the owner of such Trust Securities Certificate
for the purpose of receiving Distributions and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be
bound by any notice to the contrary.
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SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall
furnish or cause to be furnished to the Property Trustee (a) semi-annually on
or before January 15 and July 15 in each year, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date; and (b) promptly after
receipt by any Administrative Trustee or the Depositor of a request therefor
from the Property Trustee in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, in each case to the
extent such information is in the possession or control of the Administrative
Trustees or the Depositor and is not identical to a previously supplied list
or has not otherwise been received by the Property Trustee in its capacity as
Securities Registrar. The rights of Securityholders to communicate with
other Securityholders with respect to their rights under this Trust Agreement
or under the Trust Securities, and the corresponding rights of the Trustee
shall be as provided in the Trust Indenture Act. Each Holder, by receiving
and holding a Trust Securities Certificate, and each owner shall be deemed to
have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was
derived.
SECTION 508. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in The City of New York or
other location designated by the Administrative Trustees, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate
the Corporate Trust Office of the Property Trustee, Two International Place,
4th Floor, Boston, Massachusetts 02110, as the principal corporate trust
office for such purposes. The Administrative Trustees shall give prompt
written notice to the Depositor and to the Securityholders of any change in
the location of the Securities Register or any such office or agency.
SECTION 509. APPOINTMENT OF PAYING AGENT.
The Property Trustee shall act as the Paying Agent. The Paying Agent
shall make Distributions to Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Property Trustee and
the Administrative Trustees. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign
or its authority to act be revoked, the Administrative Trustees shall appoint
a successor that is acceptable to the Property Trustee and the Depositor to
act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent
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appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent
permitted by law, any attempted transfer of the Common Securities (other than
a transfer in connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 12.1 of the Indenture) shall be void.
The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
SECTION 511. PREFERRED SECURITIES CERTIFICATES.
(a) Each owner shall receive a Preferred Securities Certificate
representing such owner's interest in such Preferred Securities. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the record holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrative Trustees,
as evidenced by the execution thereof by the Administrative Trustees or any
one of them.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 512. [INTENTIONALLY OMITTED].
SECTION 513. [INTENTIONALLY OMITTED].
SECTION 514. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with
Section 209, and the Securityholders shall not have any right or title
therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or similar
rights. When issued and delivered to Holders of the Preferred Securities
against payment of the purchase price therefor, the Preferred Securities
shall be fully paid
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and nonassessable interests in the Trust. The Holders of the Preferred
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to
the Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal
and interest on such Debentures shall remain subordinated to the extent
provided in the Indenture.
(c) For so long as any Preferred Securities remain outstanding, if,
upon a Debenture Event of Default arising from the failure to pay interest or
principal on the Debentures, the Holders of any Preferred Securities then
Outstanding shall, to the fullest extent permitted by law, have the right to
directly institute proceedings for enforcement of payment to such Holders of
principal of or interest on the Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 601. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 601, in Sections 514, 810 and
1002 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so
as to constitute the Securityholders from time to time as partners or members
of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with respect to such
Debentures; (ii) waive any past default which is waivable under Article VII
of the Indenture; (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; or
(iv) consent 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 at least a majority in
Liquidation Amount of all Outstanding Preferred Securities; provided,
however, that where a consent under the Indenture would require the consent
of each Holder of Outstanding Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Outstanding Preferred Securities, except by a subsequent vote of the Holders
of the Outstanding Preferred Securities. The Property Trustee shall notify
each Holder of the Outstanding Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
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Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust shall continue to be
classified as a grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of
the Preferred Securities, whether by way of amendment to the Trust Agreement
or otherwise; or (ii) the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class shall be entitled to
vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at least a majority
in Liquidation Amount of the Outstanding Preferred Securities. No amendment
to this Trust Agreement may be made if, as a result of such amendment, the
Trust would cease to be classified as a grantor trust or would be classified
as an association taxable as a corporation for United States federal income
tax purposes.
SECTION 602. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 1008 to each Preferred Securityholder of record,
at his registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting
may be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
SECTION 603. MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter in respect of which Preferred Securityholders are entitled
to vote upon the written request of the Preferred Securityholders of 25% of
the Outstanding Preferred Securities (based upon their aggregate Liquidation
Amount) and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of Preferred Securityholders to vote
on any matters as to which the Preferred Securityholders are entitled to
vote.
(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation Amount), present
in person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding
more than a majority of the Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Preferred Securityholders of record present,
either in person or by proxy, at such meeting shall constitute the action of
the Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
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SECTION 604. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 605. PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at
which such vote shall be taken. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by
proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall
not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and, the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of
all Outstanding Trust Securities (based upon their aggregate Liquidation
Amount) entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon their aggregate
Liquidation Amount).
SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate
in any Distribution on the Trust Securities in respect of which a record date
is not otherwise provided for in this Trust Agreement, or for the purpose of
any other action, the Administrative Trustees may from time to time fix a
date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
SECTION 608. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
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such agent shall be sufficient for any purpose of this Trust Agreement and
(subject to Section 801) conclusive in favor of the Trustees, if made in the
manner provided in this Section 608.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the Securityholder
of every Trust Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such
liquidation amount.
(f) A Securityholder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee
(as defined in the Guarantee), the Trust or any Person.
SECTION 609. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection and copying by
Securityholders and their authorized representatives during normal business
hours for any purpose reasonably related to such Securityholder's interest as
a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND
THE PROPERTY TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each Successor Property Trustee at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (the term "Bank" being used to refer to such
Successor Property Trustee in its separate corporate capacity) hereby
represents and warrants (as applicable) for the benefit of the Depositor and
the Securityholders that:
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(a) the Bank is a trust company duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Property Trustee
of this Trust Agreement has been duly authorized by all necessary corporate
or other action on the part of the Property Trustee and does not require any
approval of stockholders of the Bank and such execution, delivery and
performance shall not (i) violate the Bank's charter or by-laws; (ii) violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Bank is a party or by which
it is bound; or (iii) violate any law, governmental rule or regulation of the
United States or the Commonwealth of Massachusetts, as the case may be,
governing the banking or trust powers of the Bank or the Property Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein requires
the consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority or
agency under any existing federal law governing the banking or trust powers
of the Bank or the Property Trustee, as the case may be, under the laws of
the United States or the Commonwealth of Massachusetts; and
(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Bank or the Property
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power
and authority of the Property Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE
BANK AND THE DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each Successor Delaware Trustee
at the time of the Successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to
such Successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and
the Securityholders that:
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(a) the Delaware Bank is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware;
(b) the Delaware Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware Trustee
of this Trust Agreement has been duly authorized by all necessary corporate
or other action on the part of the Delaware Trustee and does not require any
approval of stockholders of the Delaware Bank and such execution, delivery
and performance shall not (i) violate the Delaware Bank's charter or by-laws;
(ii) violate any provision of, or constitute, with or without notice or lapse
of time, a default under, or result in the creation or imposition of, any
Lien on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Delaware Bank or the Delaware Trustee is
a party or by which it is bound; or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case may
be, governing the banking or trust powers of the Delaware Bank or the
Delaware Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein or therein requires
the consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority or
agency under any existing federal law governing the banking or trust powers
of the Delaware Bank or the Delaware Trustee, as the case may be, under the
laws of the United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Bank or the
Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power
and authority of the Delaware Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date or
the Option Closing Date, if applicable, on behalf of the Trust have been duly
authorized and, shall have been, duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms and
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provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders shall be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
TRUSTEES
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds
or otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it. No Administrative Trustee nor the Delaware Trustee shall be
liable for its act or omissions hereunder except as a result of its own gross
negligence or willful misconduct. The Property Trustee's liability shall be
determined under the Trust Indenture Act. Whether or not therein expressly
so provided, every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustees shall
be subject to the provisions of this Section 801. To the extent that, at law
or in equity, the Delaware Trustee or an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or
to the Securityholders, the Delaware Trustee or such Administrative Trustee
shall not be liable to the Trust or to any Securityholder for such Trustee's
good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Delaware Trustee or the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the Delaware
Trustee and the Administrative Trustees, as the case may be.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms
hereof. With respect to the relationship of each Securityholder and the
Trustee, each Securityholder, by its acceptance of a Trust Security, agrees
that it shall look solely to the revenue and proceeds from the Trust Property
to the extent legally available for distribution to it as herein provided and
that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 801(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
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(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such Property in a similar manner as
the Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor and money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Payment Account maintained
by the Property Trustee pursuant to Section 301 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the negligence, default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 802. CERTAIN NOTICES.
(a) Within 5 Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 1008, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
For purposes of this Section 802 the term "Event of Default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in Section 1008,
notice of the Depositor's election to begin or further extend an Extended
Interest Payment Period on the Debentures (unless such election shall have
been revoked) within the time specified for transmitting such notice to the
holders of the Debentures pursuant to the Indenture as originally executed.
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SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action;
or (ii) in construing any of the provisions of this Trust Agreement the
Property Trustee finds the same ambiguous or inconsistent with other
provisions contained herein; or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to vote under
the terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the Depositor as
to the course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not receive such
instructions of the Depositor within 10 Business Days after it has delivered
such notice, or such reasonably shorter period of time set forth in such
notice (which to the extent practicable shall not be less than 2 Business
Days), it may, but shall be under no duty to, take or refrain from taking
such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced
by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an Officer's
Certificate which, upon receipt of such request, shall be promptly delivered
by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement, any filing under tax or securities laws or any filing
under tax or securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel of its choice
(which counsel may be counsel to the Depositor or any of its Affiliates) and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and, in accordance with such
advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the
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Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to selection
of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder the
Property Trustee (i) may request instructions from the Holders of the Trust
Securities which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled
to direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action; (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received; and (iii) shall be protected in acting in accordance with such
instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement. No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or 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 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of
the Debentures.
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SECTION 805. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with
the Trust with the same rights it would have if it were not a Trustee or such
other agent.
SECTION 806. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Trust Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to such Trustee's negligence,
bad faith or willful misconduct (or, in the case of the Administrative
Trustees or the Delaware Trustee, any such expense, disbursement or advance
as may be attributable to its, his or her gross negligence, bad faith or
willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee for,
and to hold the Trustees harmless against, any loss, damage, claims,
liability, penalty or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this Trust Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except any such expense,
disbursement or advance as may be attributable to such Trustee's negligence,
bad faith or willful misconduct (or, in the case of the Administrative
Trustees or the Delaware Trustee, any such expense, disbursement or advance
as may be attributable to its, his or her gross negligence, bad faith or
willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a result
of any amount due pursuant to this Section 806.
SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED;
ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section 807, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section 807, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VIII.
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(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of
Delaware; or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind
such entity.
SECTION 808. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Trust Agreement.
SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor
shall for such purpose join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary or
proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section 809.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power
to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section 809 shall either be (i) a natural person who is at
least 21 years of age and a resident of the United States; or (ii) a legal
entity with its principal place of business in the United States that shall
act through one or more persons authorized to bind such entity.
(b) Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power,
any and all such instruments shall, on request, be executed, acknowledged,
and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal
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property held by, or required to be deposited or pledged with, the Trustees
specified hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is
to be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section 809, and, in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee shall have the power to
accept the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided in this Section 809.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article VIII shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 811.
(b) Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust Securities by giving
written notice thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by Section 811 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the expense
of the Depositor, any court of competent jurisdiction for the appointment of
a successor Relevant Trustee with respect to the Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the
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Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee
for any cause, at a time when no Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and the successor Trustee shall comply with the applicable
requirements of Section 811. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when
a Debenture Event of Default shall have occurred and is continuing, the
Preferred Securityholders, by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then Outstanding delivered to
the retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the Trust, and
such successor Trustee shall comply with the applicable requirements of
Section 811. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture
Event of Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to an
Administrative Trustee, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees with respect to the Trust Securities and
the Trust, and such successor Administrative Trustee or Administrative
Trustees shall comply with the applicable requirements of Section 811. If no
successor Relevant Trustee with respect to the Trust Securities shall have
been so appointed by the Common Securityholder or the Preferred
Securityholders and accepted appointment in the manner required by
Section 811, any Securityholder who has been a Securityholder of Trust
Securities on behalf of himself and all others similarly situated may
petition a court of competent jurisdiction for the appointment Trustee with
respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 1008 and shall give notice
to the Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust office if it is the
Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by (a) the unanimous act of remaining
Administrative Trustees if there are at least two of them; or (b) otherwise
by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees set forth
in Section 807).
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Trust Securities shall execute and deliver an instrument hereto wherein each
successor Relevant Trustee shall accept such appointment and which shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to
the Trust
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Securities and the Trust and upon the execution and delivery of such instrument
the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the immediately preceding paragraph, as the case may
be.
(c) No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon
the Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any
such other obligor).
SECTION 814. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 15 of each year commencing with July 15,
1997, the Property Trustee shall transmit to all Securityholders in
accordance with Section 1008, and to the Depositor, a brief report dated as
of such May 15 with respect to:
(i) its eligibility under Section 807 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it has
not previously reported and which in its opinion materially affects the Trust
Securities.
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(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with The Nasdaq
Stock Market's National Market, and each national securities exchange or
other organization upon which the Trust Securities are listed, and also with
the Commission and the Depositor.
SECTION 815. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
as required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in
the form of an Officers' Certificate.
SECTION 817. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease
the number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 817(a), or if
the number of Trustees is increased pursuant to Section 817(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 810.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 810, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 818. 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 207(a); and
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(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust
or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of the Trust,
as set forth herein.
SECTION 819. VOTING.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by
not less than a majority of the Administrative Trustees, unless there are
only two, in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 901. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
March 31, 2052 (the "Expiration Date") subject to distribution of the Trust
Property in accordance with Section 904.
SECTION 902. EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor) to dissolve the Trust and distribute the
Debentures to Securityholders in exchange for the Preferred Securities in
accordance with Section 904;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all of the Debentures; and
(d) an order for dissolution of the Trust shall have been entered by
a court of competent jurisdiction.
SECTION 903. TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 904, or
upon the redemption of all of the Trust Securities pursuant to Section 402,
of all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (b) the payment of any expenses owed by the Trust;
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the
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Securityholders; and (d) the filing of a Certificate of Cancellation by the
Administrative Trustee under the Business Trust Act.
SECTION 904. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or
(d) of Section 902 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Securityholder a Like Amount
of Debentures, subject to Section 904(d). Notice of liquidation shall be
given by the Property Trustee by first-class mail, postage prepaid, mailed
not later than 30 nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities shall no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange shall be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures, or,
if Section 904(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment
of a separate exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
outstanding; (ii) certificates representing a Like Amount of Debentures shall
be issued to holders of Trust Securities Certificates upon surrender of such
certificates to the Administrative Trustees or their agent for exchange;
(iii) the Depositor shall use its reasonable efforts to have the Debentures
listed on The Nasdaq Stock Market's National Market or on such other
securities exchange or other organization as the Preferred Securities are
then listed or traded; (iv) any Trust Securities Certificates not so
surrendered for exchange shall be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal
shall be made to holders of Trust Securities Certificates with respect to
such Debentures); and (v) all rights of Securityholders holding Trust
Securities shall cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 904, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise,
41
<PAGE> 47
distribution of the Debentures in the manner provided herein is determined by
the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders shall be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding-up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities shall be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Section 905. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the holders
of the Preferred Securities, the Property Trustee or the Delaware Trustee,
the Trust may merge with or into, consolidate, amalgamate, be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any state; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities; or
(b) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise; (ii) the Depositor
expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the
holder of the Debentures; (iii) the Successor Securities are listed or
traded, or any Successor Securities shall be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect; (v) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in
any material respect; and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust
nor such successor entity shall be required to register as an "investment
company" under the Investment Company Act; and (vi) the Depositor owns all of
the Common Securities of such successor entity and guarantees the obligations
of such successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of holders of 100% in Liquidation Amount
of the Preferred Securities, consolidate,
42
<PAGE> 48
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or
any Securityholder for such Person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 1002. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders,
(i) as provided in Section 811 with respect to acceptance of appointment by a
successor Trustee; (ii) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other
provision herein or therein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement; or (iii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust shall 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 shall
not be required to register as an "investment company" under the Investment
Company Act; provided, however, that in the case of clause (ii), such action
shall not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 601(c) or Section 1002(c) hereof,
any provision of this Trust Agreement may be amended by the Trustees and the
Depositor (i) with the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding; and (ii) upon receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment shall not affect the Trust's
status as a grantor trust for United States federal income tax purposes or
the Trust's exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 603 or 606 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date; or
43
<PAGE> 49
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the Securityholders (such
consent being obtained in accordance with Section 603 or 606 hereof), this
paragraph (c) of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption
from status of an "investment company" under the Investment Company Act or to
fail or cease to be classified as a grantor trust for United States federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended
in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects
its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is
in compliance with this Trust Agreement.
SECTION 1003. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1004. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES).
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day which is a Business Day, with the
same force and effect as though made on the date fixed for such payment, and
no distribution shall accumulate thereon for the period after such date.
44
<PAGE> 50
SECTION 1006. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant
Trustee(s), including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that
is permitted under Article XII of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder,
the Depositor shall not assign its obligations hereunder.
SECTION 1007. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 1008. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Mississippi Valley Bancshares, Inc., 700 Corporate Park Drive,
St. Louis, Missouri 63105, Attn: Chief Financial Officer. Any notice to
Preferred Securityholders shall also be given to such owners as have, within
two years preceding the giving of such notice, filed their names and
addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
given in writing addressed (until another address is published by the Trust)
as follows: (a) with respect to the Property Trustee to State Street Bank
and Trust Company, Two International Place, 4th Floor, Boston, Massachusetts
02110, Attention: Corporate Trust Department; (b) with respect to the
Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration; and (c) with respect to the Administrative Trustees, to
them at the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of MVBI Capital Trust." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing
by the Trust or the Property Trustee.
SECTION 1009. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and 1 day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join
in the filing of, a petition against the Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code of 1978, as amended)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of
45
<PAGE> 51
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 1009, the Property
Trustee agrees, for the benefit of Securityholders, that at the expense of
the Depositor (which expense shall be paid prior to the filing), it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom. The provisions of this Section 1009 shall survive the termination
of this Trust Agreement.
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies
or excludes any provision of the Trust Indenture Act which may be so modified
or excluded, the latter provision shall be deemed to apply to this Trust
Agreement as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS
46
<PAGE> 52
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND SUCH SECURITYHOLDER AND SUCH OTHERS.
MISSISSIPPI VALLEY BANCSHARES, INC.
as Depositor,
By:
-----------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Property Trustee
By:
-----------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
-----------------------------------------------
Name:
Title:
--------------------------------------------------
LINN H. BEALKE, as Administrative Trustee
--------------------------------------------------
PAUL M. STRIEKER, as Administrative Trustee
--------------------------------------------------
CAROL DOLENZ, as Administrative Trustee
47
<PAGE> 53
EXHIBIT B
[Intentionally Omitted]
B-1
<PAGE> 54
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER 1 NUMBER OF COMMON SECURITIES: -------
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
MVBI CAPITAL TRUST
COMMON SECURITIES
(LIQUIDATION AMOUNT $------ PER COMMON SECURITY)
MVBI CAPITAL TRUST, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
MISSISSIPPI VALLEY BANCSHARES, INC. (the "Holder") is the registered
owner of ------------------------------------------- (-------) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Floating Rate Common Securities
(liquidation amount $------ per Common Security) (the "Common Securities").
In accordance with Section 510 of the Trust Agreement (as defined below), the
Common Securities are not transferable and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Trust dated as of
- ----------------, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common Securities
as set forth therein. The Trust shall furnish a copy of the Trust Agreement
to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ---- day of -------------------------.
MVBI CAPITAL TRUST
By
-------------------------------------------
Name:
Title:
C-1
<PAGE> 55
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement")
dated as of ----------------, 1997, between MISSISSIPPI VALLEY
BANCSHARES, INC., a Missouri corporation (the "Company"), and MVBI
CAPITAL TRUST, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Debentures from, the Company and to issue and
sell ------------------------- Floating Rate Cumulative Trust Preferred
Securities (the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of ----------------, as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the
Common Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase the Company hereby agrees shall
benefit the Company and which purchase the Company acknowledges shall be made
in reliance upon the execution and delivery of this Agreement, the Company,
including in its capacity as holder of the Common Securities, and the Trust
hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY THE COMPANY.
Subject to the terms and conditions hereof, the Company, including in
its capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment when and as due, of any and all Obligations (as hereinafter defined)
to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust other than obligations of the Trust to
pay to holders of any Preferred Securities or other similar interests in the
Trust the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise); and (b) the date on which
there are no Beneficiaries remaining; provided, however, that this Agreement
shall continue to be effective or shall be reinstated, as the case may be, if
at any time any holder of Preferred Securities
D-1
<PAGE> 56
or any Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any obligation, under the Preferred Securities Guarantee
Agreement dated the date hereof by the Company and State Street Bank and Trust
Company, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. WAIVER OF NOTICE.
The Company hereby waives notice of acceptance of this Agreement and of
any obligation to which it applies or may apply, and the Company hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of the Company under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance of any other obligation
under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Beneficiaries with respect to the obligations or
any action on the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Company with respect to the happening of any of
the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against the Company,
and the Company waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against the Company.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Company and shall inure to the benefit of the Beneficiaries.
D-2
<PAGE> 57
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answerback, if sent by telex):
MVBI Capital Trust
c/o Mississippi Valley Banschares, Inc.
700 Corporate Park Drive
St. Louis, MO 63105
Facsimile No.: (314) 268-2581
Attention: Paul M. Strieker, Executive Vice President
Mississippi Valley Bancshares, Inc.
700 Corporate Park Drive
St. Louis, MO 63105
Facsimile No.: (314) 268-2581
Attention: Paul M. Strieker, Executive Vice President
SECTION 2.4. This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Missouri (without
regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above
written.
MISSISSIPPI VALLEY BANCSHARES, INC.
By:
----------------------------------------------
Name:
Title:
MVBI CAPITAL TRUST
By:
----------------------------------------------
Name:
Title: Administrative Trustee
D-3
<PAGE> 58
EXHIBIT E
Certificate Number Number of Preferred Securities --------
P-
Certificate Evidencing Preferred Securities
of
MVBI Capital Trust
Floating Rate Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security)
CUSIP NO. ----------------
MVBI Capital Trust, 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 ----- preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated the Floating Rate Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in
Section 504 of the Trust Agreement (as defined herein). The designations,
rights, privileges, restrictions, preferences, and other terms and provisions
of the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of ----------------, as the same may be
amended from time to time (the "Trust Agreement"), including the designation
of the terms of Preferred Securities as set forth therein. The Holder is
entitled to the benefits of the Preferred Securities Guarantee Agreement
entered into by Mississippi Valley Bancshares, Inc., a Missouri corporation,
and State Street Bank and Trust Company, as guarantee trustee, dated as of
- ---------------- (the "Guarantee"), to the extent provided therein. The
Trust shall furnish a copy of the Trust Agreement and the Guarantee to the
Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually executed by
the Authentication Agent, this certificate is not valid or effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate as of the date hereof.
E-1
<PAGE> 59
Dated: MVBI CAPITAL TRUST
CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate By
Cumulative Trust Preferred Securities ----------------------------------
referred to in the within-mentioned Linn H. Bealke, Trustee
Amended and Restated Trust Agreement.
By
----------------------------------
STATE STREET BANK & TRUST COMPANY, Paul M. Strieker, Trustee
as Authentication Agent and Registrars
By
----------------------------------
Carol Dolenz, Trustee
By
----------------------------------
Authorized Signature
E-2
<PAGE> 60
[FORM ON REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of Preferred
Securities who so requests, a copy of the Trust Agreement and the Guarantee.
Any such request should be in writing and addressed to MVBI Capital Trust c/o
Mississippi Valley Bancshares, Inc., 700 Corporate Park Drive, St. Louis,
Missouri 63105, or to the Registrar named on the face of this Certificate.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT -
.........Custodian............
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act.........................
in common (State)
TOD - transfer on death direction in
event of owner's death, UNIF TRF MIN ACT - .....Custodian (until age).....
to person named on face and (Cust)
subject to TOD rules referenced .....under Uniform Transfers
(Minor)
to Minors Act...............
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and
--------------------------
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred Securities
- ------------------------------------------------------------
represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said Preferred Securities on the books of the within
named Corporation with full power of substitution in the premises.
Dated,
--------------------------
---------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERNATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
- ------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
E-3
<PAGE> 1
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
MISSISSIPPI VALLEY BANCSHARES, INC.
AND
STATE STREET BANK AND TRUST COMPANY
----------------, 1997
================================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page No.
<S> <C>
ARTICLE I DEFINITIONS AND INTERPRETATION 1
Section 1.1. Definitions and Interpretation 1
ARTICLE II TRUST INDENTURE ACT 4
Section 2.1. Trust Indenture Act; Application 4
Section 2.2. Lists of Holders of Securities 4
Section 2.3. Reports by the Preferred Guarantee Trustee 5
Section 2.4. Periodic Reports to Preferred Guarantee Trustee 5
Section 2.5. Evidence of Compliance with Conditions Precedent 5
Section 2.6. Events of Default; Waiver 5
Section 2.7. Event of Default; Notice 5
Section 2.8. Conflicting Interests 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE 6
Section 3.1. Powers and Duties of the Preferred Guarantee Trustee 6
Section 3.2. Certain Rights of Preferred Guarantee Trustee 7
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee 9
ARTICLE IV PREFERRED GUARANTEE TRUSTEE 9
Section 4.1. Preferred Guarantee Trustee; Eligibility 9
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee Trustees 10
ARTICLE V GUARANTEE 10
Section 5.1. Guarantee 10
Section 5.2. Waiver of Notice and Demand 11
Section 5.3. Obligations not Affected 11
Section 5.4. Rights of Holders 12
Section 5.5. Guarantee of Payment. 12
Section 5.6. Subrogation. 12
Section 5.7. Independent Obligations 12
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION 13
Section 6.1. Limitation of Transactions 13
Section 6.2 Ranking 13
ARTICLE VII TERMINATION 13
Section 7.1. Termination 13
ARTICLE VIII INDEMNIFICATION 13
Section 8.1. Exculpation 13
Section 8.2. Indemnification 14
i
<PAGE> 3
ARTICLE IX MISCELLANEOUS 14
Section 9.1. Successors and Assigns 14
Section 9.2. Amendments 14
Section 9.3. Notices 14
Section 9.4. Benefit 15
Section 9.5. Governing Law 15
</TABLE>
ii
<PAGE> 4
<TABLE>
CROSS REFERENCE TABLE
<CAPTION>
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
---------------- ---------
<S> <C>
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) 3.1
317(b) Not Applicable
318(a) 2.1(a)
318(b) 2.1
318(c) 2.1(b)
</TABLE>
Note: This Cross-Reference Table does not constitute part of this
Agreement and shall not affect the interpretation of any of its
terms or provisions.
iii
<PAGE> 5
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (this
"Preferred Securities Guarantee"), dated as of ----------, 1997, is executed
and delivered by MISSISSIPPI VALLEY BANCSHARES, INC., a Missouri
corporation (the "Guarantor"), and STATE STREET BANK AND TRUST COMPANY,
a trust company organized and existing under the laws of the Commonwealth of
Massachusetts, as trustee (the "Preferred Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of MVBI Capital Trust, a Delaware statutory
business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of ----------, 1997, among the trustees of the
Trust named therein, the Guarantor, as depositor, and the holders from time
to time of undivided beneficial interests in the assets of the Trust, the
Trust is issuing on the date hereof ---------- preferred securities, having
an aggregate liquidation amount of $---------, designated the Floating Rate
Cumulative Trust Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of
execution of this Preferred Securities Guarantee have the same meaning when
used in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
<PAGE> 6
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context
otherwise requires; and
(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
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which federal or
state banking institutions in New York, New York are authorized or required
by law, executive order or regulation to close or a day on which the
Corporate Trust Office of the Preferred Guarantee Trustee is closed for
business.
"Corporate Trust Office" means the office of the Preferred
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Corporate Trust Department.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the Floating Rate Subordinated Debentures due
2027, of the Debenture Issuer held by the Property Trustee of the Trust.
"Debenture Issuer" means the Guarantor.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantor" means Mississippi Valley Bancshares, Inc., a Missouri
corporation.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Trust: (i) any accrued and unpaid
Distributions (as defined in the Trust Agreement) that are required to be
paid on such Preferred Securities, to the extent the Trust shall have funds
available therefor, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price"), to
the extent the Trust has funds available therefor, with respect to any
Preferred Securities called for redemption by the Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Debentures to the Holders
in exchange for Preferred Securities as provided in the Trust Agreement), the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Preferred Securities to the date of payment, to
the extent the Trust shall have funds available therefor (the "Liquidation
Distribution"), and (b) the amount of assets of the Trust remaining available
for distribution to Holders in liquidation of the Trust.
2
<PAGE> 7
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, however, that,
in determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of -----------, 1997,
among the Debenture Issuer and State Street Bank and Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Property Trustee of the Trust.
"Liquidation Distribution" has the meaning provided therefor in
the definition of Guarantee Payments.
"Majority in liquidation amount of the Preferred Securities" means
the holders of more than 50% of the liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all of the Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Guarantee Trustee" means State Street Bank and Trust
Company, until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
3
<PAGE> 8
"Redemption Price" has the meaning provided therefor in the
definition of Guarantee Payments.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the Preferred
Guarantee Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Preferred
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) In the event the Preferred Guarantee Trustee is not also
the Transfer Agent, the Guarantor shall provide the Preferred Guarantee
Trustee with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of such date, (i) within 1
Business Day after January 1 and June 30 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 15 days before such List of
Holders is given to the Preferred Guarantee Trustee; provided, that the
Guarantor shall not be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders
given to the Preferred Guarantee Trustee by the Guarantor. The Preferred
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
4
<PAGE> 9
SECTION 2.3. REPORTS BY THE PREFERRED GUARANTEE TRUSTEE.
On or before July 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The
Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (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.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided
for in this Preferred Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Preferred Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such
notice; provided, that the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or of which a Responsible Officer of the
Preferred Guarantee Trustee charged with the administration of the Trust
Agreement shall have obtained actual knowledge.
5
<PAGE> 10
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described
in this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee
Trustee, and such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing,
the Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6) and is actually known
to a Responsible Officer of the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Preferred Securities Guarantee, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express provisions of
this Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and obligations
as are specifically set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee; and
6
<PAGE> 11
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Preferred Guarantee Trustee and conforming to the requirements of this
Preferred Securities Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the Preferred Guarantee Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred upon
the Preferred Guarantee Trustee under this Preferred Securities Guarantee;
and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to it
under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) the Preferred 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 Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or omitting
any action hereunder, the Preferred Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor;
7
<PAGE> 12
(iv) the Preferred 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 Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction;
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Guarantee Trustee
such security and indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances
as may be requested by the Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Preferred Securities Guarantee;
(vii) the Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and the
Preferred Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the Preferred Securities,
and the signature of the Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount of
the Preferred 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.
8
<PAGE> 13
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Preferred Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The Recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not
assume any responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes
of this Section 4.1(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 Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
9
<PAGE> 14
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED
GUARANTEE TRUSTEES.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts 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 Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
10
<PAGE> 15
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Debentures or any extension of the maturity
date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust or
any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) any failure or omission to receive any regulatory approval
or consent required in connection with the Preferred Securities (or the
common equity securities issued by the Trust), including the failure to
receive any approval of the Board of Governors of the Federal Reserve System
required for the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
11
<PAGE> 16
(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
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Preferred 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 of Preferred Securities against the Trust in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Preferred Securities Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Preferred Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to
in subsections (a) through (h), inclusive, of Section 5.3 hereof.
12
<PAGE> 17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default under this Preferred Securities
Guarantee, an Event of Default under the Trust Agreement or during an
Extended Interest Payment Period (as defined in the Indenture), then (a) the
Guarantor shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock (other than as a result of a
reclassification of its capital stock for another class of its capital stock)
and (b) the Guarantor shall not make any payment of interest or principal on
or repay, repurchase or redeem any debt securities issued by the Guarantor
which rank pari passu with or junior to the Debentures.
SECTION 6.2 RANKING.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, (ii) pari passu with
the most senior preferred securities or preference stock now or hereafter
issued by the Guarantor and with any guarantee now or hereafter entered into
by the Guarantor in respect of any preferred securities 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 Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust, or (iii) upon distribution of the Debentures to the
Holders of the Preferred Securities. Notwithstanding the foregoing, this
Preferred Securities Guarantee shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Preferred 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
13
<PAGE> 18
Preferred 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 and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this
Section 8.2 shall survive the termination of this Preferred Securities
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
SECTION 9.2. 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 Preferred Securities Guarantee may only be amended
with the prior approval of the Holders of at least a Majority in liquidation
amount of the Preferred Securities. The provisions of Article VI of the
Trust Agreement with respect to meetings of Holders of the Preferred
Securities apply to the giving of such approval.
SECTION 9.3. NOTICES.
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall
be delivered, telecopied or mailed by registered or certified mail, as
follows:
14
<PAGE> 19
(a) If given to the Preferred Guarantee Trustee, at the
Preferred Guarantee Trustee's mailing address set forth below (or such other
address as the Preferred Guarantee Trustee may give notice of to the Holders
of the Preferred Securities):
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities):
Mississippi Valley Banschares, Inc.
700 Corporate Park Drive
St. Louis, Missouri 63105
Attention: Paul M. Strieker
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4. BENEFIT.
This Preferred Securities Guarantee is solely for the benefit of
the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5. GOVERNING LAW.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MISSOURI.
This Preferred Securities Guarantee is executed as of the day and
year first above written.
MISSISSIPPI VALLEY BANCSHARES, INC.
as Guarantor
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
15
<PAGE> 20
STATE STREET BANK AND TRUST COMPANY,
as Preferred Guarantee Trustee
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
16
<PAGE> 1
<TABLE>
Mississippi Valley Bancshares, Inc.
Computation of Ratio of Earnings to Combined Fixed Charges
And Preferred Stock Dividends
<CAPTION>
Year Ended December 31
-----------------------------------------------------------------------------------------
1996 1995 1994 1993 1992
-----------------------------------------------------------------------------------------
($ in thousands)
<S> <C> <C> <C> <C> <C>
Including Interest on Deposits
- ------------------------------
Earnings:
Earnings before income taxes $ 21,852 $ 17,204 $ 14,216 $ 9,991 $ 7,355
Fixed charges from below 41,199 38,689 24,248 19,807 21,096
--------- --------- --------- --------- ---------
Earnings $ 63,051 $ 55,893 $ 38,464 $ 29,798 $ 28,451
========= ========= ========= ========= =========
Fixed charges and preferred stock
dividends
Interest expense $ 40,811 $ 38,295 $ 23,883 $ 19,428 $ 20,714
Rent expense 388 394 365 379 382
--------- --------- --------- --------- ---------
Total fixed charges 41,199 38,689 24,248 19,807 21,096
--------- --------- --------- --------- ---------
Preferred stock dividends 231 231 231 173 -
--------- --------- --------- --------- ---------
Total fixed charges and preferred
stock dividends $ 41,430 $ 38,920 $ 24,479 $ 19,980 $ 21,096
Ratio of earnings to combined fixed
charges and preferred stock
dividends 1.52X 1.44X 1.57X 1.49X 1.35X
--------- --------- --------- --------- ---------
Excluding Interest on Deposits
- ------------------------------
Earnings:
Earnings before income taxes $ 21,852 $ 17,204 $ 14,216 $ 9,991 $ 7,355
Fixed charges from below 2,868 3,555 2,183 1,666 2,064
--------- --------- --------- --------- ---------
Earnings $ 24,720 $ 20,759 $ 16,399 $ 11,657 $ 9,419
========= ========= ========= ========= =========
Fixed charges and preferred stock
dividends
Interest expense $ 2,480 $ 3,161 $ 1,818 $ 1,287 $ 1,682
Rent expense 388 394 365 379 382
--------- --------- --------- --------- ---------
Total fixed charges 2,868 3,555 2,183 1,666 2,064
--------- --------- --------- --------- ---------
Preferred stock dividends 231 231 231 173 -
--------- --------- --------- --------- ---------
Total fixed charges and preferred
stock dividends $ 3,099 $ 3,786 $ 2,414 $ 1,839 $ 2,064
========= ========= ========= ========= =========
Ratio of earnings to combined fixed
charges and preferred stock
dividends 7.98X 5.48X 6.79X 6.34X 4.56X
========= ========= ========= ========= =========
</TABLE>
<PAGE> 1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus of Mississippi Valley
Bancshares, Inc. for the registration of 598,000 Preferred Securities of MVBI
Capital Trust and approximately $14,950,000 of Floating Rate Subordinated
Debentures of Mississippi Valley Bancshares, Inc. and to the incorporation by
reference therein of our report dated January 16, 1997, with respect to the
consolidated financial statements of Mississippi Valley Bancshares, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
February 18, 1997
St. Louis, Missouri
<PAGE> 1
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) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------------
MISSISSIPPI VALLEY BANCSHARES, INC.
(Exact name of obligor as specified in its charter)
MISSOURI 43-1336298
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 CORPORATE PARK DRIVE, ST. LOUIS, MISSOURI 63105
(314) 268-2580
(Address of principal executive offices) (Zip Code)
--------------------
% SUBORDINATED DEBENTURES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein
by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File
No. 33-37823) and is incorporated herein by reference
thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR
IS IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter
for the obligor, the trustee has relied upon information furnished to it by
the obligor and the underwriters, and the trustee disclaims responsibility for
the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of February, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-------------------------------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by
MISSISSIPPI VALLEY BANCSHARES of its % SUBORDINATED DEBENTURES, we hereby
consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
----------------------------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: FEBRUARY 16, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business September 30, 1996, published in accordance with a call made by the
------------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,385,597
Interest-bearing balances 6,205,892
Securities 8,693,549
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,707,012
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,352,939
Allowance for loan and lease losses 71,421
Loans and leases, net of unearned income and allowances 4,281,518
Assets held in trading accounts 702,030
Premises and fixed assets 364,550
Other real estate owned 1,100
Investments in unconsolidated subsidiaries 65,775
Customers' liability to this bank on acceptances outstanding 36,351
Intangible assets 71,688
Other assets 835,647
-----------
Total assets 28,350,709
===========
LIABILITIES
Deposits:
In domestic offices 8,283,786
Noninterest-bearing 6,040,773
Interest-bearing 2,243,013
In foreign offices and Edge subsidiary 9,309,212
Noninterest-bearing 53,213
Interest-bearing 9,255,999
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 7,014,421
Demand notes issued to the U.S. Treasury and Trading Liabilities 698,705
Other borrowed money 690,865
Bank's liability on acceptances executed and outstanding 37,357
Other liabilities 695,718
-----------
Total liabilities 26,730,064
-----------
EQUITY CAPITAL
Common stock 29,931
Surplus 277,023
Undivided profits 1,311,920
Cumulative foreign currency translation adjustments 1,771
-----------
Total equity capital 1,620,645
-----------
Total liabilities and equity capital 28,350,709
===========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
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 Board of Governors of the Federal Reserve System and is true
and correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
<PAGE> 1
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) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------------
MVBI CAPITAL TRUST
(Exact name of obligor as specified in its charter)
DELAWARE 43-1771456
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 CORPORATE PARK DRIVE, ST. LOUIS, MISSOURI 63105
(314) 268-2580
(Address of principal executive offices) (Zip Code)
--------------------
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein
by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File
No. 33-37823) and is incorporated herein by reference
thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR
IS IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter
for the obligor, the trustee has relied upon information furnished to it by
the obligor and the underwriters, and the trustee disclaims responsibility for
the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of February, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-------------------------------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by
MVBI CAPITAL TRUST of its PREFERRED SECURITIES, we hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
----------------------------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: FEBRUARY 16, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business September 30, 1996, published in accordance with a call made by the
------------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,385,597
Interest-bearing balances 6,205,892
Securities 8,693,549
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,707,012
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,352,939
Allowance for loan and lease losses 71,421
Loans and leases, net of unearned income and allowances 4,281,518
Assets held in trading accounts 702,030
Premises and fixed assets 364,550
Other real estate owned 1,100
Investments in unconsolidated subsidiaries 65,775
Customers' liability to this bank on acceptances outstanding 36,351
Intangible assets 71,688
Other assets 835,647
-----------
Total assets 28,350,709
===========
LIABILITIES
Deposits:
In domestic offices 8,283,786
Noninterest-bearing 6,040,773
Interest-bearing 2,243,013
In foreign offices and Edge subsidiary 9,309,212
Noninterest-bearing 53,213
Interest-bearing 9,255,999
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 7,014,421
Demand notes issued to the U.S. Treasury and Trading Liabilities 698,705
Other borrowed money 690,865
Bank's liability on acceptances executed and outstanding 37,357
Other liabilities 695,718
-----------
Total liabilities 26,730,064
-----------
EQUITY CAPITAL
Common stock 29,931
Surplus 277,023
Undivided profits 1,311,920
Cumulative foreign currency translation adjustments 1,771
-----------
Total equity capital 1,620,645
-----------
Total liabilities and equity capital 28,350,709
===========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
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 Board of Governors of the Federal Reserve System and is true
and correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
<PAGE> 1
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) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------------
MISSISSIPPI VALLEY BANCSHARES, INC.
(Exact name of obligor as specified in its charter)
MISSOURI 43-1336298
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 CORPORATE PARK DRIVE, ST. LOUIS, MISSOURI 63105
(314) 268-2580
(Address of principal executive offices) (Zip Code)
--------------------
GUARANTEE
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein
by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File
No. 33-37823) and is incorporated herein by reference
thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR
IS IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter
for the obligor, the trustee has relied upon information furnished to it by
the obligor and the underwriters, and the trustee disclaims responsibility for
the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of February, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-------------------------------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by
MISSISSIPPI VALLEY BANCSHARES of its GUARANTEE, we hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
----------------------------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: FEBRUARY 16, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business September 30, 1996, published in accordance with a call made by the
------------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,385,597
Interest-bearing balances 6,205,892
Securities 8,693,549
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,707,012
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,352,939
Allowance for loan and lease losses 71,421
Loans and leases, net of unearned income and allowances 4,281,518
Assets held in trading accounts 702,030
Premises and fixed assets 364,550
Other real estate owned 1,100
Investments in unconsolidated subsidiaries 65,775
Customers' liability to this bank on acceptances outstanding 36,351
Intangible assets 71,688
Other assets 835,647
-----------
Total assets 28,350,709
===========
LIABILITIES
Deposits:
In domestic offices 8,283,786
Noninterest-bearing 6,040,773
Interest-bearing 2,243,013
In foreign offices and Edge subsidiary 9,309,212
Noninterest-bearing 53,213
Interest-bearing 9,255,999
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 7,014,421
Demand notes issued to the U.S. Treasury and Trading Liabilities 698,705
Other borrowed money 690,865
Bank's liability on acceptances executed and outstanding 37,357
Other liabilities 695,718
-----------
Total liabilities 26,730,064
-----------
EQUITY CAPITAL
Common stock 29,931
Surplus 277,023
Undivided profits 1,311,920
Cumulative foreign currency translation adjustments 1,771
-----------
Total equity capital 1,620,645
-----------
Total liabilities and equity capital 28,350,709
===========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
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 Board of Governors of the Federal Reserve System and is true
and correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
