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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):November 20,1998
WSFS FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 0-16668 22-2866913
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(State or other jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification no.)
838 MARKET STREET, WILMINGTON, DELAWARE 19899
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:(302) 792-6000
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Not Applicable
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(Former name or former address, if changed since last report)
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Exhibit Index on Page 2
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ITEM 5. OTHER EVENTS
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On November 20, 1998, the Registrant's wholly owned
subsidiary, WSFS Capital Trust I (the "Trust") issued
$50,000,000 aggregate liquidation amount of Floating Rate
Cumulative Trust Preferred Securities at a public offering price
of $1,000 per Trust Preferred Security. Distributions will be
paid on the Trust Preferred Securities at a variable rate, reset
quarterly, equal to three-month LIBOR plus 250 basis points.
The Trust Preferred Securities are guaranteed by the Registrant
based on several obligations. The Trust invested the proceeds
from such sale into $50,000,000 aggregate principal amount of
Floating Rate Junior Subordinated Debentures due December 1,
2028 of the Company with the same financial terms and payment
obligations as the Trust Preferred Securities.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
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(a) Financial Statements of Businesses Acquired. None
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(b) Pro Forma Financial Information. None
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(c) Exhibits. The following exhibits are filed as part
-------- of this report on Form 8-K:
EXHIBIT NO. DESCRIPTION
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1.1 Underwriting Agreement dated November
17, 1998, between Sandler O'Neill &
Partners, L.P. and WSFS Financial
Corporation and Wilmington Savings Fund
Society, Federal Savings Bank
4.1 Amended and Restated Trust Agreement of
WSFS Capital I
4.2 Officers Certificate and Company Order
for Floating Rate Junior Subordinated
Debentures due December 1, 2028
4.3 Trust Preferred Securities Guarantee
Agreement
4.4 Form of Trust Preferred Security
(included in Exhibit 4.1)
4.5 Form of Floating Rate Junior Subordinated
Debenture due December 1, 2028
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly author-
ized.
WSFS FINANCIAL CORPORATION
Date: November 20, 1998 BY: /s/ Marvin N. Schoenhals
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Marvin N. Schoenhals
Chairman, President
and Chief Executive Officer
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WSFS CAPITAL TRUST I
50,000 Trust Preferred Securities
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount of $1,000 per Trust Preferred Security)
UNDERWRITING AGREEMENT
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November 17, 1998
SANDLER O'NEILL & PARTNERS, L.P.
Two World Trade Center, 104th Floor
New York, New York 10048
Ladies and Gentlemen:
WSFS Financial Corporation, a Delaware corporation
(the "Company"), Wilmington Savings Fund Society FSB (the
"Bank") and the Company's financing subsidiary, WSFS Capital
Trust I, a Delaware business trust (the "Trust," and hereinafter
together with the Company, and the Bank, the "Offerors"),
propose that the Trust issue and sell to Sandler O'Neill &
Partners, L.P. (the "Underwriter"), pursuant to the terms of
this Agreement, 50,000 of the Trust's Floating Rate Cumulative
Trust Preferred Securities, with a liquidation amount of $1,000
per trust preferred security (the "Trust 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 Offerors hereby confirm as follows their
agreement with the Underwriter in connection with the proposed
purchase of the Trust Preferred Securities. The terms,
conditions, covenants and agreements set forth in this Agreement
supersede and preempt the terms, conditions, covenants and
agreements of the parties set forth in any and all other
agreements among the parties hereto relating to the issuance of
the Trust Preferred Securities.
SECTION 1. Sale, Purchase and Delivery of Trust
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Preferred Securities; Description of Trust Preferred Securities.
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(a) Sale and Purchase of Trust Preferred
Securities. 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 $1,000 per Trust Preferred Security (the "Purchase
Price"), the Trust Preferred Securities.
(b) Commission. Because the proceeds from the
sale of the Trust Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and
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as described in the Prospectus), the Company shall pay to the
Underwriter a commission of $20 per Trust Preferred Security
purchased (the "Trust Preferred Securities Commission"). The
Company shall pay, or cause to be paid, the Trust Preferred
Securities Commission, by wire transfer of immediately available
funds to a bank account designated by you.
(c) Payment and Delivery. The Trust Preferred
Securities shall be issued in the form of one or more fully
registered global securities (the "Global Securities") in book-
entry form in such denominations and registered in the name of
the nominee of The Depository Trust Company (the "DTC") or in
such names as the Underwriter may request in writing at least
two business days before the Closing Date. Certificates
representing the Global Securities for the Trust Preferred
Securities shall be made available for examination by the
Underwriter and counsel to the Underwriter not later than 9:30
a.m., New York City time, on the last business day prior to the
Closing Date (as defined below). Payment of the Purchase Price
and delivery of the Trust Preferred Securities shall be made at
the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919
Third Avenue, New York, New York 10022, or such other place as
shall be agreed to by you and the Offerors, at 11:00 a.m., New
York City time, on November 20, 1998, or at such other time not
more than three full business days thereafter as the Offerors
and you shall determine (the "Closing Date"). Such payments
shall be made to an account designated by the Trust by wire
transfer of immediately available funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the
Trust to you of certificates representing the Global Securities
for the Trust Preferred Securities to be purchased. As used
herein, "business day" shall mean any day other than a Saturday,
a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by
law to close in New York City.
(d) Description of Trust Preferred Securities.
The Offerors propose that the Trust issue the Trust Preferred
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of the Closing Date, among the Company,
Wilmington Trust Company, as property trustee (the "Property
Trustee") and Delaware trustee (the "Delaware Trustee"), and the
administrative trustees named therein (the "Administrative
Trustees," collectively with the Property Trustee and the
Delaware Trustee, the "Trustees"), 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 Trust Preferred Securities, the Company
proposes (i) to issue its Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2028 ( the "Debentures")
pursuant to an Indenture, to be dated as of the Closing Date, as
amended or supplemented (the "Indenture"), between the Company
and Wilmington Trust Company, as debenture trustee (the
"Debenture Trustee") and (ii) to guarantee certain payments on
the Trust Preferred Securities pursuant to a Guarantee
Agreement, to be dated as of the Closing Date (the "Guarantee"),
between the Company and Wilmington Trust Company, as guarantee
trustee (the "Guarantee Trustee"), to the extent described
therein.
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SECTION 2. Representations and Warranties.
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(a) The Offerors jointly and severally represent
and warrant to 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") during the two year period ending
on the date hereof, 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,
as amended by Amendment No. 1 (File Numbers 333-56015,
333-56015-01 and 333-56015-02), for the registration of
the Trust Preferred Securities, the Guarantee and the
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, each Preliminary Prospectus (as defined
herein) contained therein and the exhibits, financial
statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered
by the Offerors to the Underwriter. After the execution of
this Agreement, the Offerors will file with the Commission
(A) if such registration statement, as it may have been
amended, has been declared by the Commission to be
effective under the 1933 Act, a prospectus in the form
most recently included in an amendment to such
registration statement (or, if no such amendment shall
have been filed, in such registration statement), with
such changes or insertions as are required by Rule 430A of
the 1933 Act Regulations ("Rule 430A") or permitted by
Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)")
and as have been provided to and not objected to by the
Underwriter prior to (or as are agreed to by the
Underwriter subsequent to) the execution of this
Agreement, or (B) if such registration statement, as it
may have been amended, has not been declared by the
Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form
of final prospectus, necessary to permit such registration
statement to become effective, a copy of which amendment
has been furnished to and not objected to by the
Underwriter prior to (or is agreed to by the Underwriter
subsequent to) the execution of this Agreement. As used
in this Agreement, the term "Registration Statement" means
such registration statement, as amended at the time when
it was or is declared effective under the 1933 Act,
including
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(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 the 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
the Preliminary Prospectus or Prospectus, as the case may
be, at the time the Registration Statement became or be
comes effective and at the 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, the most recent 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. Each
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 writ
ing to the Offerors by the Underwriter expressly for
inclusion in the Prospectus beneath the heading "Underwrit-
ing" (such information referred to herein as the "Under-
writer's Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date,
the Registration Statement and any post-effective amend-
ment thereto (A) complied and will comply in all material
respects with the
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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. At the Effective Date
and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Trust
Preferred Securities, including, without limitation, the
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 Underwriter's Information or to the
Statements of Eligibility of each of the Property Trustee,
the Guarantee Trustee and the Debenture Trustee on Form T-1
filed as exhibits to the Registration Statement.
(vi) (A) The Company is duly organized,
validly existing and in good standing under the laws of
the State of Delaware, with full corporate and other power
and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted
and is duly registered as a unitary savings and loan
holding company under the Home Owners Loan Act (the
"HOLA").
(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 Trust 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, and at the Closing Date will be, to the
knowledge of the Offerors,
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classified for United States federal income tax purposes as
a grantor trust and not as an association taxable as a
corporation; and the Trust is, and as of the
Closing Date will be, treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting
principles.
(vii) The Company has no other significant
subsidiaries within the meaning of Rule 1-02 of Regulation
S-X under the 1933 Act other than the Bank and WSFS Credit
Corporation ("WSFS Credit", together with the Bank, the
"Subsidiaries"). All the subsidiaries of the Company are
listed on Exhibit A attached hereto. The Company does not
own or control, directly or indirectly, more than 5% of
any class of equity security of any corporation,
association or other entity other than the subsidiaries
listed on Exhibit A attached hereto. Each Subsidiary is a
savings and loan institution or corporation duly
incorporated (or created, 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, the most recent Preliminary
Prospectus) and as currently being conducted. The deposit
accounts of the Bank are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation
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) Each of the Company and 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 or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(ix) (A) 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, the most recent
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, the
most recent 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
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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.
(B) All of the issued and outstanding
shares of capital stock of the Subsidiaries (1) have been
duly authorized and are validly issued, (2) are fully paid
and nonassessable and (3) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent 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.
(x) (A) The Trust has all requisite power
and authority to issue, sell and deliver the Trust
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, the most
recent Preliminary Prospectus). All corporate and trust
action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Trust
Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken. The
Trust Preferred Securities, when delivered in accordance
with this Agreement, will be duly and validly issued and
outstanding, will be 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, will conform in all material
respects to the description thereof in the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and
the Trust Agreement and will be entitled to the same
limitation of personal liability extended to stockholders
of private corporations for profit organized under the
Delaware General Corporation Law. None of the Trust
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 title defect.
(B) The Debentures have been duly and
validly authorized by the Company, 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, enforceable in accordance with
its terms, except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy,
insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors
generally, and are entitled to the benefits of the Inden-
ture and will conform in all material respects to the
description thereof contained in the Prospectus.
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(C) The Guarantee has been duly and
validly authorized, and on the Closing Date, 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
in all material respects to the description thereof
contained in the Prospectus.
(D) The agreement as to expenses and
liabilities (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed
and delivered to the Company, will constitute a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting creditors' rights
generally, and will conform in all material respects to
the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have
complied 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, the most recent
Preliminary Prospectus) and as currently being conducted
except where the failure to so comply would not have a
material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xii) The Offerors and the Subsidiaries have
all 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, the most recent Preliminary Prospectus) and as
currently being conducted, except where the failure to
have such Permits would not have a material adverse effect
on the condition, financial or otherwise, earnings,
affairs, business, prospects or results of operations of
the Offerors and the Subsidiaries on a consolidated basis.
All such Permits are in full force and effect and each of
the Offerors and the Subsidiaries are in all material
respects complying therewith, and no event has occurred
that allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any
other material impairment of the rights of the holder of
any such Permit, subject in each case to such
qualification as may be adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), except where the
failure of such Permits to be in full force and effect or
the lack of such compliance would not have a material
adverse effect on the condition, financial or otherwise,
earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis. Such Permits contain no restrictions
that
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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 has received notice or
otherwise has knowledge of any proceeding or action
relating to the revocation or modification of any such
Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate
charter, bylaws or other governing documents (including
without limitation, the Trust Agreement). Neither of the
Offerors nor any of the Subsidiaries are, 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, except where such breach,
violation or default would not have a material adverse
effect on the condition, financial or otherwise, earnings,
affairs, business, prospects, or results of operations of
the Offerors 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, the most
recent 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, affairs, business, prospects, or
results of operations of the Offerors 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
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent
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 Trust 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
bylaws of the Company or the Subsidiaries, the Trust
Agreement, the Guarantee, the Indenture, any contract,
indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any
other agreement or instrument to which the Offerors or the
Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or any order,
decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any
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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, affairs,
business, prospects 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 such Preliminary Prospectus), except
such as may be required under the 1933 Act, and such as may
be required under state securities laws in connection with
the purchase and distribution of the Trust Preferred
Securities by the Underwriter. 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,
except such as have been obtained under the 1933 Act, 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 Trust Preferred Securities
by the Underwriters.
(xv) The Offerors have all requisite
corporate or trust 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. The Administrative Trustees of the Trust
are officers of the Company and have been duly authorized
by the Company to execute and deliver the Trust Agreement.
The Trust Agreement has been duly authorized and, when
executed and delivered by the Company and the Trustees,
will constitute the valid and legally binding instrument of
the Company and the Trustees, enforceable in accordance
with its terms. Each of the Indenture, the Trust Agreement
and the Guarantee has been duly qualified under the Trust
Indenture Act and will conform in all material respects to
the description thereof contained in the Prospectus.
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(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, the
most recent 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.
(xvii) KPMG Peat Marwick LLP, who have
certified certain of the consolidated financial statements
of the Company and the Subsidiaries including the notes
thereto, included or incorporated by reference in the
Registration Statement and Prospectus, are independent
public accountants with respect to the Company and the
Subsidiaries, as required by the 1933 Act and the 1933 Act
Regulations.
(xviii) The consolidated financial
statements including the schedules and notes thereto,
included by incorporation or otherwise in the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent 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 stockholders' equity of the Company
and the Subsidiaries for the periods specified and have
been prepared in conformity with generally accepted ac
counting principles applied on a consistent basis. The
selected and summary consolidated financial data concern-
ing the Offerors and the Subsidiaries included in the
Registration Statement and the Prospectus (or such
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 such Preliminary Prospectus). The Company
had an outstanding capitalization as set forth under
"Capitalization" in the Prospectus as of the date indicated
therein and there has been no material change therein since
such date except as disclosed in the Prospectus. The other
financial, statistical and numerical information included
in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) comply in all material respects
with the 1933 Act and the 1933 Act Regulations, present
fairly the in formation shown therein, and to the extent
applicable have been compiled on a basis consistent with
the consolidated
11<PAGE>
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financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus
(or such 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, the
most recent Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of
the Subsidiaries have 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 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 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 ordi
nary course of business which is material to the
condition (financial or otherwise), earnings,
business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated
basis;
(D) neither of the Offerors have declared
or paid any dividend or distribution and neither of
the Offerors nor any of the Subsidiaries have 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, the most recent Preliminary Prospectus), no
charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened,
against or involving the property or assets of 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 reason-
12<PAGE>
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ably be expected to have a material adverse effect on the
consummation of this Agreement or the transactions
contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects 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 Pro
spectus (or such 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, the
most recent 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 Trust Preferred
Securities, and neither of the Offerors is aware of any
such action taken or to be taken by any officer, director,
trustee or 5% or more stockholder 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, the most recent 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, affairs, business, prospects 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 disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no labor dispute involving
the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be
expected to have a material adverse effect on the
condition (financial or otherwise), earnings, affairs,
business, prospects 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, the most recent
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
13<PAGE>
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condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have
properly prepared and timely 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, affairs, business, prospects 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, affairs, business,
prospects or results of operations of the Offerors 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, the most recent 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 such 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, stockholders, 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, the most recent 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 Trust
Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus).
14<PAGE>
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(xxix) Except as described (or referred to) in
the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or material legal
restrictions, 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
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.
(xxx) Neither of the Offerors is, and follow-
ing the consummation of the transactions contemplated
hereby and the application of the net proceeds as
described in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act").
(xxxi) The Offerors have not distributed and
will not distribute prior to the Closing Date any
prospectus in connection with the Offering (as hereinafter
defined), 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.
(xxxii) The Company and each Subsidiary
have in place and effective such policies of insurance,
with limits of liability in such amounts, as are normal
and prudent in the ordinary scope of business similar to
that of the Company and such Subsidiary in the respective
jurisdiction in which they conduct business.
(xxxiii) The provisions of any employee
pension benefit plan ("Pension Plan") as defined in Sec
tion 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), in which the Company or any
Subsidiary is a participating employer are in substantial
compliance with ERISA, and neither the Company nor any
Subsidiary is in violation of ERISA. The Company, each
Subsidiary, or the plan sponsor thereof, as the case may
be, has duly and timely filed the reports required to be
filed by ERISA in connection with the maintenance of any
Pension Plans in which the Company or any Subsidiary is a
participating employer, and no facts, including any
"reportable event" as defined by ERISA and the regulations
thereunder, exist in connection with any Pension Plan in
which the Company or any Subsidiary is a participating
employer which might constitute grounds for the termination
of such plan by the Pension Benefit Guaranty Corporation or
for the appointment by the appropriate U.S. District Court
of a trustee to administer any such plan. The provisions
of any employee benefit welfare plan, as defined in Section
3(1) of ERISA, in which the Company or any Subsidiary is a
participating employer, are in substantial compliance with
ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the
reports required to be filed by ERISA in connection with
the maintenance of any such plans.
15<PAGE>
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SECTION 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 Trust 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
Trust 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.
SECTION 4. Certain Covenants of the Offerors.
The Offerors jointly and severally covenant with the Underwriter
as follows:
(a) Effectiveness of Registration Statement. 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) Continued Compliance with Securities Laws.
The Offerors shall notify you immediately, and confirm such
notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement,
has become effective, or when the Prospectus or any
supplement to the Prospectus or any amended Prospectus has
been filed;
(ii) of the receipt of any comments or
requests from the Commission;
(iii) of any request of the Commission to
amend or supplement the Registration Statement, any
Preliminary Prospectus or the Prospectus or for additional
information; and
16<PAGE>
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(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 Trust 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) Delivery of Registration Statements and
Prospectuses. The Offerors shall furnish to the Underwriter,
from time to time and 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) each Preliminary Prospectus and all
amendments and supplements thereto and (v) the Prospectus, and
all amendments and supplements thereto.
(d) Filing of Amendments and Supplements. During
the time when a prospectus is required to be delivered under the
1933 Act, the Offerors shall comply to the best of their ability
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 Trust 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 you shall not
previously have been advised in writing and provided a copy a
reasonable time prior to the proposed filings thereof or to
which you or counsel to the Underwriter shall object. If it is
necessary, in the Company's reasonable opinion or in the
reasonable opinion of the Company's counsel to amend or
supplement the Registration Statement or the Prospectus
in connection with the distribution of the Trust 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 you or
counsel to the Underwriter does not reasonably object), and
furnishing to you, such number of copies as you 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 you and counsel to the Underwriter). 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 you,
such number of copies as you may reasonably
17<PAGE>
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request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance
satisfactory to you and counsel to the Underwriter) so that, as
so amended or supplemented, the Prospectus shall not contain an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Blue Sky Qualifications. The Offerors shall
cooperate with you in order to qualify the Trust Preferred
Securities for offering and sale under the securities or blue
sky laws of such jurisdictions as you may reasonably request and
shall continue such qualifications in effect so long as may be
advisable for distribution of the Trust 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 (except with respect to the
offering and sale of the Trust Preferred Securities). The
Offerors shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Trust
Preferred Securities have been qualified as above. The Offerors
will notify you immediately of, and confirm in writing, the
suspension of qualification of the Trust Preferred Securities or
threat thereof in any jurisdiction.
(f) Delivery of Earnings Statement. 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 you, as soon as practicable, but in any event not
later than 15 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) Use of Proceeds. The Offerors shall use the
proceeds from the sale of the Trust Preferred Securities to be
sold by the Trust hereunder in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(h) Delivery of Corporate Documents. 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
Trust 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 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
which the Offerors have a legal obligation not to reveal to the
Underwriter.
(i) Restriction on Sale of Securities. For a
period of 180 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 Trust 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 Trust
Preferred Securities or the Debentures, including any
18<PAGE>
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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) Ordinary Course of Business. During the
period beginning on the date hereof and ending on the Closing
Date, 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 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.
(k) Restriction on Trust Preferred Securities.
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, or any repayment or notice of prepayment) of any of
the Trust Preferred Securities.
(l) Regulation 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 a violation of the Commission's Regulation M
and the Offerors are not aware of any such action taken or to be
taken by any affiliate of the Offerors.
(m) Public Communications. Prior to the 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 Trust Preferred Securities (the "Offering")
without your prior written consent which consent shall not be
unreasonably withheld.
(n) Best Efforts. The Offerors will use their
best efforts to satisfy or cause to be satisfied the conditions
to the obligations of the Underwriter in Section 6 hereof.
(o) Blue Sky Undertakings. The Trust shall comply
in all respects with the undertakings given by the Trust in
connection with the qualification, registration or exemption of
the Trust Preferred Securities for offering and sale under the
blue sky laws.
SECTION 5. Payment of Expenses. Whether or not
this Agreement is terminated or the sale of the Trust Preferred
Securities to the Underwriter is consummated, the Company
covenants and agrees that it will pay or cause to be paid
(directly or by reimbursement) all costs and expenses incident
to the performance of the obligations of the Offerors under this
Agreement, including:
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(a) the preparation, printing, filing, delivery
and shipping of the initial registration statement, the
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 Trust 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 Trust Preferred Securities,
Debentures and the Guarantee under the securities or blue sky
laws of such jurisdictions as you may request, including all
filing fees and reasonable fees and disbursements of counsel to
the Under writer 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) the cost of furnishing to you copies of the
initial registration statements, any Preliminary Prospectus, the
Registration Statement and the Prospectus and all amendments or
supplements thereto;
(f) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel to any
transfer agent or registrar;
(g) all costs and expenses (including stock transfer
taxes) incurred in connection with the issuance and delivery
of the Trust Preferred Securities to the Underwriter;
(h) all expenses incident to the preparation,
execution and delivery of the Trust Agreement, the Indenture and
the Guarantee; and
(i) 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.
In addition to such expenses to be borne by the
Company, the Company agrees to reimburse the Underwriter, upon
request made from time to time, for its reasonable out-of-pocket
expenses incurred in connection with its engagement hereunder,
regardless of whether the offering is consummated, including,
without limitation, legal fees and expenses, marketing,
syndication and travel expenses up to a maximum of $125,000.
20<PAGE>
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If the sale of Trust Preferred Securities contemplated
by this Agreement is not completed for any reason whatsoever
(other than as a result of the Underwriter's refusal to
proceed, without cause), whether or not such termination is
allowable hereunder, the Company will pay you your accountable
out-of-pocket expenses, up to a maximum of $125,000, in
connection herewith or in contemplation of the performance of
your obligations hereunder, including without limitation, travel
expenses, reasonable fees, expenses and disbursements of counsel
or other out-of-pocket expenses incurred by you 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 Trust Preferred Securities, in
each case following presentation of reasonably detailed invoices
therefor.
SECTION 6. Conditions of the Underwriter's Obliga-
tions. The obligations of the Underwriter to purchase and pay
for the Trust Preferred Securities are subject, in your 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 to the
accuracy of the written statements of the Offerors made pursuant
to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following
additional conditions:
(a) Effectiveness of Registration Statement. 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 11:00 a.m., New York City time,
on the first business day following the time of execution of
this Agreement, or at such later time and date as you 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 you and complied with to
your satisfaction and to the satisfaction of your counsel.
(b) Absence of Misstatements or Omissions. The
Underwriter shall not have advised the Company at or before the
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 your reasonable opinion, is material or omits to state
a fact which, in your reasonable 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.
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(c) Corporate and Legal Matters. All corporate
proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust
Agreement, and the Trust 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 reasonably satisfactory in all respects to counsel to
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) Opinion of Outside Counsel to the Offerors.
Housley Kantarian & Bronstein, P.C., counsel to the Offerors,
shall have furnished to you their signed opinion, dated the
Closing Date, in form and substance reasonably satisfactory to
counsel to the Underwriter, to the effect that:
(i) The Company has been duly incorporated
and is validly existing and in good standing under the
laws of the State of Delaware, and is duly registered as a
savings and loan holding company under the HOLA. 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 or
properties are described in the Prospectus in all material
respects. The Company and each Subsidiary are qualified
to do business as foreign corporations, or exempt from
such qualification, under the corporation laws of each
jurisdiction which requires such qualification, wherein it
owns or leases material properties or conducts material
business that is set forth on Annex A to such opinion.
All outstanding shares of capital stock of the Subsidiaries
have been duly authorized and validly issued and are
fully paid and nonassessable and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus,
there are no outstanding rights, options or warrants
to purchase any such shares or securities convertible into
or exchangeable for any such shares.
(ii) The capital stock, Debentures and
Guarantee of the Company and the equity securities of the
Trust conform to the description thereof contained in the
Prospectus in all material respects. The authorized
capital stock of the Company as of June 30, 1998 is as set
forth under the caption "Capitalization" in the Prospectus,
has been duly authorized and, assuming the receipt of
full and adequate consideration therefor by the Company,
have been validly issued. 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
Trust Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement and the
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Indenture have been duly authorized by all necessary
actions of the Company. The Trust Preferred Securities
will conform in all material respects to the description
thereof in the Registration Statement, the Prospectus and
the Trust Agreement. 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 pursuant to the
corporate charter, bylaws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors, or, to the best of such counsel's knowledge,
any agreement or other instrument to which either the
Offerors is a party or by which any of the Offerors may be
bound.
(iv) The Company has all requisite corporate
power to enter into and perform its obligations under this
Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligations of
the Company 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.
(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, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and
remedies of creditors generally.
(vi) The Debentures have been duly
authorized, executed, authenticated and delivered by the
Company, are entitled to the benefits of the Indenture and
are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy,
insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors
generally.
(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, except as the
enforcement thereof may be limited by general principles
of equity and by bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the
rights and remedies of creditors generally.
(viii) To the best of such counsel's know-
ledge, neither of the Offerors nor any of the Subsidiaries
is in breach or violation of, or default under, with or
without
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notice or lapse of time or both, its corporate charter,
bylaws or governing document (including without
limitation, the Trust Agreement). To the best knowledge
of such counsel, after due inquiry, the execution,
delivery and performance of this Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement
and the Indenture, the issue and sale of the Trust
Preferred Securities and the Debentures, the compliance by
the Company with the provisions of the Trust Preferred
Securities, the Debentures, the Indenture and this
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 Trust Preferred
Securities, 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, bylaws 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 any order, decree, judgment,
franchise, license, Permit, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality known to such counsel having jurisdiction
over the Offerors or the Subsidiaries which, in each case,
is material to the Offerors and the Subsidiaries on a
consolidated basis.
(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 except
the registration rights granted to persons pursuant to the
Registration Rights Agreement, dated as of September 18,
1992, as amended, by and between Star States Corporation,
John W. Rollins and Michele M. Rollins, and the
Registration Rights Agreement, dated as of September 18,
1992, as amended, by and between Star States Corporation,
Thrift Investors, L.P. and Quad-C, Inc.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, 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 or
against or affecting any of their properties, before or by
any court or governmental official, commission, board or
other administrative agency, authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or
finding could reasonably be expected to have a material
adverse effect on the issuance and sale of the Trust
Preferred Securities as contemplated herein or the
condition (financial or otherwise), earnings, affairs,
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.
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(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 issuance, distribution and sale of the Trust
Preferred Securities and the Debentures pursuant to this
Agreement, the Trust Agreement, the Guarantee Agreement,
the Expense Agreement, the Indenture, 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 Trust Preferred
Securities by the Underwriter, as to which no opinion need
be rendered.
(xii) The Registration Statement and the
Prospectus and any amendments or supplements thereto
(other than the financial statements or other financial or
statistical data included therein or omitted therefrom and
Underwriter's Information and the Statements of
Eligibility of each of the Property Trustee, the Guarantee
Trustee and the Debenture Trustee on Form T-1 filed as
exhibits to the Registration Statement, 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 and in each case at the Closing Date.
(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 Trust Preferred Securities," "Description
of Junior Subordinated Debentures," "Description of
Guarantees," "Relationship Among the Trust Preferred
Securities, the Junior Subordinated Debentures and the
Guarantees," and "ERISA Considerations" in the Prospectus
(or incorporated therein by reference), insofar as such
statements constitute a summary of legal and regulatory
matters, documents, instruments or proceedings referred to
therein are accurate in all material respects, 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.
(xvi) Except as set forth (or referred to) in
the Prospectus, to the best of such counsel's knowledge,
there are no contractual encumbrances or restrictions, or
25<PAGE>
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material legal restrictions 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) The Trust is not regulated or required
to be registered as an "investment company" as defined in
the Investment Company Act.
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 giving the above opinion, such counsel may state
that insofar as such opinion relates to matters of New York law,
they have relied upon the opinion of Skadden, Arps, Slate,
Meagher & Flom LLP and as to matters of Delaware law, other than
the Delaware General Corporation Law, they have relied upon the
opinion of Richards, Layton & Finger, P.A.
Such counsel shall also state in a separate letter
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 you and
your counsel, at which conferences such counsel made inquiries
of such officers, representatives and accountants and the
contents of the Registration Statement and Prospectus were
discussed in detail and based on such conferences, nothing has
come to the attention of such counsel to cause it 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 view), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein
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 view), 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
and at the 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 the 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.
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(e) Opinion of Special Delaware Counsel to the
Offerors. Richards, Layton & Finger, P.A., as special Delaware
counsel to the Company and the Trust, shall have furnished to
you their signed opinion, dated as of Closing Date, in form and
substance satisfactory to counsel to the Underwriter, 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, 12 Del. C.
Subsection 3801 et seq. (the "Delaware Act"), with the
business trust power and authority to (a) own its property
and conduct its business as described in the Prospectus,
(b) execute and deliver, and perform its obligations under,
this Agreement and (c) issue and perform its obligations
under the Trust Preferred Securities. All filings required
under the laws of the State of Delaware with respect to
the creation and valid existence of the Trust as a
business trust have been made.
(ii) The Trust Agreement constitutes a
legal, valid and binding obligation of the Company and the
Trustees of the Trust in accordance with its terms.
(iii) Under the Trust Agreement and the
Delaware Act, all necessary trust action has been taken on
the part of the Trust to duly authorize the execution and
delivery of this Agreement by the Trust and the
performance of its obligations hereunder.
(iv) The Trust Preferred Securities have
been duly authorized for issuance by the Trust Agreement
and, when issued, delivered and paid for in accordance
with the terms of the Trust Agreement and this Agreement
and as described in the Prospectus, will be validly issued
and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests in
the assets of the Trust. The holders of the Trust
Preferred Securities will be entitled to the benefits of
the Trust Agreement and will be entitled to the same
limitation of personal liability extended to stockholders
of private corporations for profit organized under the
Delaware General Corporation Law. Such opinion may note
that the holders of the Trust Preferred Securities may be
required to make payment or provide indemnity or security
as set forth in the Trust Agreement.
(v) Under the Trust Agreement and the
Delaware Act, the issuance of the Trust Preferred
Securities is not subject to preemptive rights.
(vi) The issuance and sale by the Trust of
the Trust Preferred Securities and the Common Securities,
the purchase by the Trust of the Debentures, the
execution, delivery and performance by the Trust of this
Agreement, and the consummation by the Trust of the
transactions contemplated by this Agreement will not (a)
violate any of the provisions of the Certificate of Trust
or the Trust Agreement or (b) violate any applicable
Delaware law or administrative regulation.
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(vii) The issuance, sale and delivery of the
Debentures, the execution, delivery and performance by the
Company of this Agreement, and the consummation by the
Company of the transactions contemplated by this Agreement
will not violate any applicable Delaware law or
administrative regulation.
(viii) Assuming that the Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware
Act and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State
of Delaware, no filing with, or authorization, approval,
consent, license, order, registration, qualification or
decree of, any Delaware court or Delaware governmental
authority or agency (other than as may be required under
the securities or blue sky laws of the State of Delaware
as to which such counsel may express no opinion) is
necessary or required to be obtained by the Trust solely in
connection with the due authorization, execution and
delivery of this Agreement by the Trust or the offering,
issuance, sale or delivery of the Trust Preferred
Securities by the Trust in accordance with the Trust
Agreement and the Prospectus.
(ix) To such counsel's knowledge, there are
no actions, suits or proceedings pending or judgments
outstanding against the Trust in any court or agency or
instrumentality of the United States of America that relate
to or place or may place in question the validity or
enforceability of this Agreement or the issuance and sale
of the Trust Preferred Securities and the Common
Securities by the Trust or the purchase of the Debentures
by the Trust.
(x) The Common Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust
Agreement.
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) Opinion of Counsel to Wilmington Trust Company.
Richards, Layton & Finger, P.A., counsel to Wilmington
Trust Company (the "Trust Company") shall have furnished to you
their signed opinion, dated the Closing Date, in form and
substance reasonably satisfactory to counsel to the Underwriter,
to the effect that:
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(i) The Trust Company is duly incorporated
and is validly existing in good standing as a banking
corporation with trust powers under the laws of the State
of Delaware.
(ii) The Trust Company, as Debenture Trustee,
has the requisite power and authority to execute, deliver
and perform its obligations under the Indenture, and has
taken all necessary corporate action to authorize the
execution, delivery and performance by it of the
Indenture.
(iii) The Trust Company, as Guarantee
Trustee, has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee
Agreement, and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of
the Guarantee.
(iv) The Trust Company, as Property Trustee,
has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary
corporate action to authorize the execution and delivery
of the Trust Agreement.
(v) Each of the Indenture and the Guarantee
Agreement has been duly executed and delivered by the
Trust Company, as Debenture Trustee and Guarantee Trustee,
respectively, and constitutes a legal, valid and binding
obligation of the Indenture Trustee and the Guarantee
Trustee, respectively, enforceable against the Debenture
Trustee and the Guarantee Trustee, respectively in
accordance with its respective terms, except that certain
payment obligations may be enforceable solely against the
assets of the Trust and except that such enforcement may
be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation, fraudulent conveyance and transfer
of other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of
equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in
a proceeding in equity or at law), and by the effect of
applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(vi) The Debentures delivered on the Closing
Date have been duly authenticated by the Trust Company, as
Debenture Trustee, in accordance with the terms of the
Indenture.
(g) Opinion of Counsel to the Underwriter.
Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Underwriter, shall have furnished you their signed opinion,
dated the Closing Date, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this
Agreement, the validity of the Trust Preferred Securities, the
Registration Statement, the Prospectus and such other related
matters as you 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, such counsel may rely as
29<PAGE>
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to matters of fact upon statements and certifications of
officers of the Offerors and of other appropriate persons.
(h) Opinion of Special Tax Counsel for the
Offerors. At the Closing Time, the Underwriter shall have
received an opinion, dated as of the Closing Time, of Housley
Kantarian & Bronstein, P.C., special tax counsel to the
Offerors, substantially to the effect that (i) the Trust will be
classified as a grantor trust for United States federal income
tax purposes and (ii) the statements set forth in the Prospectus
under the caption "Certain Federal Income Tax Consequences"
constitute, in all material respects, a fair and accurate
summary of the United States federal income tax consequences of
the ownership and disposition of the Trust Preferred Securities
under current law. Such opinion may be conditioned on, among
other things, the initial and continuing accuracy of the facts,
financial and other information, covenants and representations
set forth in certificates of Trustees of the Trust, officers of
the Company and its subsidiaries and certificates of public
officials.
(i) Accountant's Comfort Letter. On the date of
this Agreement and on the Closing Date, the Underwriter shall
have received from KPMG Peat Marwick LLP a letter, dated as of
the date of this Agreement and the Closing Date, respectively,
in form and substance satisfactory to the Underwriter,
confirming that they are independent public accountants with
respect to the 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 and the 1933 Act Regulations.
(ii) On the basis of the procedures specified
by the American Institute of Certified Public Accountants
as described in SAS No. 71, "Interim Financial
Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such
letter, which procedures do not constitute an audit in
accordance with U.S. generally accepted auditing standards,
nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated
financial statements of the Company included in the
Registration Statement do not comply as to form in all
material respects with the applicable accounting require-
ments of the 1933 Act and 1933 Act Regulations or are not
in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent,
except as noted in the Registration Statement, with the
basis for the audited consolidated financial statements of
the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, consisting of a reading of the
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the unaudited interim financial statements and other in
formation referred to below, a reading of the latest
available unaudited condensed consolidated financial
statements of the Company, inspection of the minute books
of the Company since the date of the latest audited
financial statements of the Company included 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 stockholders equity of
the Company, or any changes, decreases or increases
in other items specified by the Underwriters, in
each case as compared with amounts shown in the
latest unaudited interim 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 unaudited interim 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, or any changes, decreases or
increases in any other items specified by the
Underwriter, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by
the Underwriter, except in each case for increases
or decreases which the Registration Statement
discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in
their report included in the Registration Statement and
the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs
(ii) and (iii) above, they have carried out certain
specified procedures, not constituting an audit in
accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages
and financial information specified by the Underwriter
which are derived from the general accounting records and
consolidated financial statements of the Company which
appear in the Registration Statement specified by the
Underwriter in the Registration Statement, and have
compared such amounts, percentages and financial
information with the accounting records and the material
derived from such records and consolidated financial
statements of the Company and have found them to be in
agreement.
31<PAGE>
<PAGE>
In the event that the letters to be delivered referred
to above set forth any such changes, decreases or increases as
specified in Clauses (iii)(A) or (iii)(B) above, or any
exceptions from such agreement specified in Clause (iv) above,
it shall be a further condition to the obligations of the
Underwriter that the Underwriter shall have determined, after
discussions with officers of the Company responsible for
financial and accounting matters, that such changes, decreases,
increases or exceptions as are set forth in such letters do not
(x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the
latest unaudited consolidated statement of financial condition
of the Company included in the Registration Statement, (y)
reflect a material adverse change in the items specified in
Clause (iii)(B) above as compared with the corresponding periods
of the prior year or other period specified by the Underwriter,
or (z) reflect a material change in items specified in Clause
(iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriter in connection with the offering
contemplated hereby or from the amounts shown in the Prospectus.
(j) Company Certificates. At the Closing Date,
you 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, 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
that the Offerors have complied with all agreements and
satisfied all conditions on their part to be performed or
satisfied at or prior to such Closing Date; (ii) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been
any material adverse change in the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis; (iii) since such dates there has not been
any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of
business; and (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
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 you 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.
(k) Trust Certificate. At the Closing Date, you
shall have received a certificate of an Administrative Trustee
of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the
representations and warranties of the Trust in this Agreement
are true and correct as though made on and as of the Closing
Date; the Trust has complied with all the agreements and
satisfied all the conditions required by this Agreement
32<PAGE>
<PAGE>
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.
(l) Counterparts. On the Closing Date, you shall
have received duly executed counterparts of the Trust Agreement,
the Guarantee, the Indenture and the Expense Agreement.
(m) NASD. The NASD shall not have objected to the
Underwriter's participation in such offering.
(n) Blue Sky Laws. The Trust Preferred Securities,
the Guarantee and the Debentures shall have been qualified
or registered for sale, or subject to an available exemption
from such qualification or registration, under the blue sky laws
of such jurisdictions as shall have been reasonably specified by
the Underwriter.
(o) Additional Documents. Prior to the Closing
Date, the Offerors shall have furnished to you and counsel to
the Underwriter all such other documents, certificates and
opinions as they 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
you. The Offerors shall furnish you with conformed copies of
such opinions, certificates, letters and other documents as you
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 you on notice to the
Company at, or at any time before, the Closing Date. Any such
termination shall be without liability of the Underwriter to the
Offerors.
SECTION 7. Indemnification and Contribution.
--------------------------------
(a) Indemnification of Underwriter. The Company,
the Trust and the Bank jointly and severally agree to indemnify
and hold harmless (x) the Underwriter, (y) each of the Under-
writer's directors, partners, officers and agents and (z) each
person, if any, who controls the Underwriter within the meaning
of the 1933 Act, as follows:
(i) 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 upon
any untrue statement or alleged untrue statement of a
material fact made by the Company or the Trust contained
33<PAGE>
<PAGE>
in the Registration Statement, any Preliminary Prospectus
or the Prospectus, or in any amendment or supplement
thereto;
(ii) 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 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 Trust Preferred Securities
under the securities laws thereof (any such application,
document or information being hereinafter referred to as a
"Blue Sky Application");
(iii) 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 upon
any omission or alleged omission to state a material fact
in the registration statement as originally filed or the
Registration Statement, 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;
(iv) 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 upon
any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus or
the Prospectus, or in any amendment or 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; and
(v) 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 upon
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
34<PAGE>
<PAGE>
allegation thereof that has been made or omitted 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 its directors, partners,
officers, and agents or of any person controlling the
Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that the
Underwriter sold Trust 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 you 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) Indemnification of Offerors, Directors and
Officers. The Underwriter agrees to indemnify and hold harmless
each Offeror, each of its directors, each of its officers and
trustees who signed the Registration Statement and each person,
if any, who controls an Offeror within the meaning of the 1933
Act, to the same extent as required by the foregoing indemnity
from the Company to the Underwriter, but only with respect to
the Underwriter's Information or information relating to the
Underwriter furnished in writing to an Offeror through the
Underwriter by or on behalf of it expressly for use in any Blue
Sky Application. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise
have to any such indemnified party.
(c) Actions against Parties; Notification. 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 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
indemni-
35<PAGE>
<PAGE>
fied 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 (in addition to any
local counsel) separate from their own counsel at any time and
for all such indemnified parties 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, suit or proceeding effected
without its written consent, but if settled with such written
consent or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying party agrees
to the extent provided by this Section 7 to 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
and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of an
indemnified party 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.
(d) Contribution. If the indemnification provided
for in this Section 7 is unavailable or insufficient to hold
harmless an indemnified party under paragraphs (a) or (b)
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 Trust
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
36<PAGE>
<PAGE>
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 proceeds from the offering of the Trust 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 underwriting discount
received by it. 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.
Neither party shall be liable for contribution for
claims settled without such party's consent, provided such
consent shall not be unreasonably withheld, conditioned or
delayed.
For purposes of this paragraph (d), each person who
controls the Underwriter within the meaning of Section 15 of the
1933 Act, the partners, directors, officers, employees and
agents of the Underwriter shall have the same rights to
contribution as the Underwriter, and each person who controls an
Offeror within the meaning of Section 15 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) Survival of Indemnification and Contribution
Provisions. 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 its partners,
directors, officers, employees or agents (or any person
controlling the Underwriter) or by or on
37<PAGE>
<PAGE>
behalf of the Offerors, or their directors, trustees or officers
(or any person controlling an Offeror), (ii) acceptance of any
Trust Preferred Securities and payment therefor hereunder and
(iii) any termination of this Agreement. A successor of the
Underwriter or its partners, directors, officers, employees or
agents, or of an Offeror, or its 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.
SECTION 8. Termination.
-----------
(a) Termination; General. You shall have the
right to terminate this Agreement at any time at or prior to the
Closing Date without liability on the part of the Underwriter to
the Offerors, if:
(i) 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;
(ii) 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 Trust Preferred
Securities;
(iii) 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, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis, whether or not arising in the
ordinary course of business;
(iv) Any event shall have occurred or shall
exist that makes untrue or incorrect in any material
respect any statement or information contained in the
Registration Statement or that is not reflected in the
Registration Statement but should be reflected therein to
make the statements or information contained therein not
misleading in any material respect; or
(v) 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
your reasonable judgment, impracticable to market the
Trust Preferred Securities or enforce contracts for the
sale of the Trust Preferred Securities;
38<PAGE>
<PAGE>
(vi) Trading generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq
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
trading of any securities of the Company on any exchanges
or in the over-the-counter market shall have been
suspended;
(vii) A banking moratorium shall have been
declared by either federal, New York or Delaware
authorities; or
(viii) Any action shall have been taken by any
government in respect of its monetary affairs which, in
your reasonable judgment, has a material adverse effect on
the United States securities markets.
(b) Liabilities. If this Agreement shall be
terminated pursuant to this Section 8, the Offerors shall not
then be under any liability to the Underwriter except that the
provisions of Sections 5 and 7 hereof shall survive any
termination of this Agreement.
SECTION 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 upon the execution and delivery hereof by the parties
hereto.
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying
the Underwriter, or by you, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be
effective.
SECTION 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
Trust Preferred Securities.
39<PAGE>
<PAGE>
SECTION 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
the Underwriter shall be directed to Sandler O'Neill & Partners,
L.P., Two World Trade Center, New York, New York 10048,
Attention: Catherine A. Lawton, Principal and General Counsel,
with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, 919
Third Avenue, New York, New York 10022, Attention: Vincent J.
Pisano, Esq.; notices to the Offerors shall be directed to WSFS
Financial Corporation, 838 Market Street, Wilmington, DE 19899,
Attention: Mark A. Turner, with a copy to Housley Kantarian &
Bronstein, P.C., 1220 19th Street, NW, Suite 700, Washington, DC
20036, Attention: James C. Stewart, Esq.
SECTION 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, partners, directors, officers,
employees and agents of the Underwriter, 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 or her status
as such purchaser, from the Underwriter of the Trust Preferred
Securities.
SECTION 13. Governing Law. This Agreement shall be
governed by the laws of the State of New York, without giving
effect to the choice of law or conflicts of law principles
thereof.
SECTION 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.
SECTION 15. Effect of Headings. The Section
headings herein are for convenience only and shall not affect
the construction hereof.
SECTION 16. Other Agreements. To the extent that
the provisions in Section 7 of this Agreement conflict with the
provisions in the Section entitled "Indemnification" set forth
in the engagement letter, dated April 9, 1998, between the
Underwriter and the Company, the provisions in this Agreement
shall control.
[Remainder of page intentionally left blank]
40
<PAGE>
<PAGE>
If the foregoing is in accordance with the your
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 you in accordance
with its terms.
Very truly yours,
WSFS FINANCIAL CORPORATION
By: /s/ Marvin N. Schoenhals
__________________________
Name: Marvin N. Schoenhals
Title: Chairman and President
WILMINGTON SAVINGS FUND
SOCIETY, FSB
By: /s/ Marvin N. Schoenhals
___________________________
Name: Marvin N. Schoenhals
Title: Chairman and President
WSFS CAPITAL TRUST I
By: /s/ Marvin N. Schoenhals
___________________________
Name: Marvin N. Schoenhals
Title: Administrative Trustee
By: /s/ Mark A. Turner
___________________________
Name: Mark A. Turner
Title: Administrative Trustee
By: /s/ David J. Martin
___________________________
Name: David J. Martin
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of November 17, 1998.
BY: SANDLER O'NEILL & PARTNERS, L.P.
BY: Sandler O'Neill & Partners Corp.,
the sole general partner
By: /s/ Catherine A. Lawton
_____________________________
Name: Catherine A. Lawton
Title: Vice President<PAGE>
<PAGE>
EXHIBIT A
LIST OF SUBSIDIARIES
--------------------
Subsidiaries of the Company
- ---------------------------
Wilmington Savings Fund Society, FSB
WSFS Capital Trust I
Subsidiaries of the Bank
- ------------------------
WSFS Credit Corporation
838 Investment Group, Inc.
Community Credit Corporation
Star States Development Company (inactive)
42
<PAGE>
================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
WSFS FINANCIAL CORPORATION, as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of November 20, 1998
WSFS CAPITAL TRUST I
================================================================
<PAGE>
<PAGE>
WSFS CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to Sections
310 through 318 of the Trust Indenture Act of 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ----------- -------
(Subsection) 310 (a)(1). . . . . . . . . . . . . . . . . . 8.7
(a)(2). . . . . . . . . . . . . . . . . . 8.7
(a)(3). . . . . . . . . . . . . . . . . . 8.9
(a)(4).. . . . . . . . . . . . . . 2.7(a)(ii)
(b). . . . . . . . . . . . . . . . . . . 8.8
(Subsection) 311 (a) . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . 8.13
(Subsection) 312 (a) . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . 5.7
(Subsection) 313 (a) . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4). . . . . . . . . . . . . . . . .14(b)
(b) . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . 8.14(c)
(Subsection) 314 (a) . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . 8.16
(c)(2). . . . . . . . . . . . . . . . 8.16
(c)(3). . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . .. . 1.1, 8.16
(Subsection) 315 (a) . . . . . . . . . . . .. 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . .. 8.1, 8.3
(e) . . . . . . . . . . . . .Not Applicable
(Subsection) 316 (a) . . . . . . . . . . . . .Not Applicable
(a)(1)(A) . . . . . . . . . .Not Applicable
(a)(1)(B) . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . .5.14
(c) . . . . . . . . . . . . . . . . . 6.7
(Subsection) 317 (a)(1). . . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . 5.9
(Subsection) 318 (a) . . . . . . . . . . . . . . . . . 10.10
_____________
Note: This reconciliation and tie sheet shall not, for any
purpose, be deemed to be a part of the Trust Agreement.
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . 1
ARTICLE II
ESTABLISHMENT OF THE TRUST . . . . . . . . . . . . . . . . . 9
Section 2.1. Name . . . . . . . . . . . . . . . . . . 9
Section 2.2. Office of the Delaware Trustee;
Principal Place of Business. . . . . . 9
Section 2.3. Initial Contribution of Trust
Property; Organizational Expenses. . . 10
Section 2.4. Issuance of the Preferred Securities . . 10
Section 2.5. Issuance of the Common Securities;
Subscription and Purchase of
Debentures . . . . . . . . . . . . . . 10
Section 2.6. Declaration of Trust . . . . . . . . . . 10
Section 2.7. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . 10
Section 2.8. Assets of Trust. . . . . . . . . . . . . 13
Section 2.9. Title to Trust Property. . . . . . . . . 14
ARTICLE III
PAYMENT ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.1. Payment Account. . . . . . . . . . . . . 14
ARTICLE IV
DISTRIBUTIONS; REDEMPTION. . . . . . . . . . . . . . . . . . 14
Section 4.1. Distributions. . . . . . . . . . . . . . 14
Section 4.2. Redemption . . . . . . . . . . . . . . . 15
Section 4.3. Subordination of Common Securities . . . 17
Section 4.4. Payment Procedures . . . . . . . . . . . 17
Section 4.5. Tax Returns and Reports. . . . . . . . . 17
Section 4.6. Payment of Taxes, Duties, Etc. of
the Trust. . . . . . . . . . . . . . . 18
Section 4.7. Payments under Indenture or pursuant
to Direct Actions. . . . . . . . . . . 18
ARTICLE V
TRUST SECURITIES CERTIFICATES. . . . . . . . . . . . . . . . 18
Section 5.1. Initial Ownership. . . . . . . . . . . . 18
Section 5.2. The Trust Securities Certificates. . . . 18
Section 5.3. Execution and Delivery of Trust
Securities Certificates. . . . . . . . 18
Section 5.4. Registration of Transfer and
Exchange of Preferred Securities
Certificates . . . . . . . . . . . . . 19
Section 5.5. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. . . . . 19
Section 5.6. Persons Deemed Securityholders . . . . . 20
Section 5.7. Access to List of Securityholders'
Names and Addresses. . . . . . . . . . 20
Section 5.8. Maintenance of Office or Agency. . . . . 20
Section 5.9. Appointment of Paying Agent. . . . . . . 20
-i-<PAGE>
<PAGE>
Section 5.10. Ownership of Common Securities by
Depositor. . . . . . . . . . . . . . . 20
Section 5.11. Book-Entry Preferred Securities
Certificates; Common Securities
Certificate. . . . . . . . . . . . . . 21
Section 5.12. Notices to Clearing Agency . . . . . . . 21
Section 5.13. Definitive Preferred Securities
Certificates . . . . . . . . . . . . . 21
Section 5.14. Rights of Securityholders. . . . . . . . 22
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING. . . . . . . . . . 23
Section 6.1. Limitations on Voting Rights . . . . . . 23
Section 6.2. Notice of Meetings . . . . . . . . . . . 24
Section 6.3. Meetings of Preferred Securityholders. . 24
Section 6.4. Voting Rights. . . . . . . . . . . . . . 25
Section 6.5. Proxies, etc . . . . . . . . . . . . . . 25
Section 6.6. Securityholder Action by Written
Consent. . . . . . . . . . . . . . . . 25
Section 6.7. Record Date for Voting and Other
Purposes . . . . . . . . . . . . . . . 25
Section 6.8. Acts of Securityholders. . . . . . . . . 25
Section 6.9. Inspection of Records. . . . . . . . . . 26
ARTICLE VII
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 26
Section 7.1. Representations and Warranties of the
Property Trustee and the Delaware
Trustee. . . . . . . . . . . . . . . . 26
Section 7.2. Representations and Warranties of
Depositor. . . . . . . . . . . . . . . 27
ARTICLE VIII
THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.1. Certain Duties and Responsibilities. . . 28
Section 8.2. Certain Notices. . . . . . . . . . . . . 29
Section 8.3. Certain Rights of Property Trustee . . . 29
Section 8.4. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . 31
Section 8.5. May Hold Securities. . . . . . . . . . . 31
Section 8.6. Compensation; Indemnity; Fees. . . . . . 31
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees. . . . . . . . 32
Section 8.8. Conflicting Interests. . . . . . . . . . 32
Section 8.9. Co-Trustees and Separate Trustee . . . . 33
Section 8.10. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . 34
Section 8.11. Acceptance of Appointment by Successor . 35
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 35
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . 35
Section 8.14. Reports by Property Trustee. . . . . . . 36
Section 8.15. Reports to the Property Trustee. . . . . 37
Section 8.16. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . 37
Section 8.17. Number of Trustees . . . . . . . . . . . 37
Section 8.18. Delegation of Power. . . . . . . . . . . 37
-ii-<PAGE>
<PAGE>
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER. . . . . . . . . . . . . 38
Section 9.1. Termination Upon Expiration Date . . . . 38
Section 9.2. Early Termination. . . . . . . . . . . . 38
Section 9.3. Termination. . . . . . . . . . . . . . . 38
Section 9.4. Liquidation. . . . . . . . . . . . . . . 38
Section 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Trust . . . . . 39
ARTICLE X
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . 40
Section 10.1. Limitation of Rights of
Securityholders. . . . . . . . . . . . 40
Section 10.2. Amendment. . . . . . . . . . . . . . . . 40
Section 10.3. Separability . . . . . . . . . . . . . . 41
Section 10.4. Governing Law. . . . . . . . . . . . . . 41
Section 10.5. Payments Due on Non-Business Day . . . . 41
Section 10.6. Successors . . . . . . . . . . . . . . . 42
Section 10.7. Headings . . . . . . . . . . . . . . . . 42
Section 10.8. Reports, Notices and Demands . . . . . . 42
Section 10.9. Agreement Not to Petition. . . . . . . . 42
Section 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act. . . . . . . . . . 43
Section 10.11. Counterparts . . . . . . . . . . . . . . 43
Section 10.12. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture. . . . . . . . 43
EXHIBIT A Certificate of Trust
EXHIBIT B Certificate Depositary Agreement
EXHIBIT C Common Securities Certificates
EXHIBIT D Expense Agreement
EXHIBIT E Preferred Securities Certificate
-iii-<PAGE>
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November
20, 1998, among (i) WSFS Financial Corporation, a Delaware
corporation (including any successors or assigns, the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as property trustee, (in each such capacity, 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, as
Delaware trustee (the "Delaware Trustee"), (iv) Marvin N.
Schoenhals, an individual, Mark A. Turner, an individual, and
David J. Martin, an individual, each of whose address is c/o
WSFS Financial Corporation, 838 Market Street, Wilmington,
Delaware 19899 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the "Trustees") and (v) the
several Holders, as hereinafter defined.
WITNESSETH
Whereas, the Depositor, the Property Trustee and the
Delaware Trustee have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by
the entering into that certain Trust Agreement, dated as of May
28, 1998 (the "Original Trust Agreement"), and by the execution
and filing by the Administrative Trustee and the Delaware
Trustee with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on May 28, 1998, attached as
Exhibit A; and
Whereas, the Depositor and the 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 by the Trust to the Depositor,
(ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Trust from the Depositor of all of the right,
title and interest in the Debentures and (iv) the appointment
of the Administrative Trustees;
Now therefore, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS.
For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(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.
1<PAGE>
<PAGE>
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the amount
of Additional Interest (as defined in the Indenture) paid by the
Depositor on a Like Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6
of the Indenture.
"Administrative Trustee" means each of the Persons
identified as an "Administrative Trustee" in the preamble to
this Trustee Agreement solely in such Person's capacity as
Administrative Trustee of the Trust formed and continued
hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or
in respect of such Person under any applicable Bankruptcy Law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of
any substantial part of its property or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90
consecutive days; or
(b) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Bankruptcy
Law, or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Law" means any federal or state bankruptcy,
insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code).
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law to remain closed, or (c) a day
2<PAGE>
<PAGE>
on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for
business.
"Calculation Agent" means Wilmington Trust Company.
"Certificate Depositary Agreement" means the agreement
among the Trust, the Depositor and The Depository Trust Company,
as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Certificate of Trust" means 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.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time
to time a Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Date" means November 20, 1998.
"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 Securities Guarantee" means the Common Securities
Guarantee Agreement extended by the Depositor contemporaneously
with the execution and delivery of this Trust Agreement, for the
benefit of the holders of Common Securities, as amended from
time to time.
"Common Securities Guarantee Agreement" means the Common
Securities Guarantee Agreement dated November 20, 1998 given by
the Depositor, as Guarantor, evidencing the Common Securities
Guarantee.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000
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 (i) when used with respect
to the Property Trustee, the principal office of the Property
Trustee located in Wilmington, Delaware, and (ii) when used
with respect to the Debenture Trustee, the principal office of
the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as
defined in 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.
3<PAGE>
<PAGE>
"Debenture Trustee" means Wilmington Trust Company, a
Delaware banking corporation, and any successor thereto.
"Debentures" means the aggregate principal amount of the
Depositor's Floating Rate Junior Subordinated Deferrable
Interest Debentures due December 1, 2028 issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either
or both (as the context requires) of (a) Preferred Securities
Certificates issued as Book-Entry Preferred Securities
Certificate as provided in Section 5.11(a) and (b) Preferred
Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Subsection 3801, et seq., as it
may be amended from time to time.
"Delaware Trustee" means the Person 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" for a Distribution Period is two
London Banking Days preceding the first day of such Distribution
Period.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distribution Period" with respect to a Trust Preferred
Security is each successive period from and including a
Distribution Date (or November 20, 1998 in the case of the
initial Distribution Period) to but excluding the next
Distribution Date or the Stated Maturity, as the case may be;
provided however, if such Distribution Date would not be a
Business Day, then such Distribution Date and the first day of
the next succeeding Distribution Period will be the next
succeeding Business Day, except that if such Business Day is in
the next succeeding calendar year, such Distribution Date and
the first day of the next succeeding Distribution Period
will be the immediately preceding Business Day.
"Distribution Rate" has the meaning specified in Section
4.1.
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in
Section 9.2.
"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 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 Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes due
and payable; or
4<PAGE>
<PAGE>
(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 or 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 9.1.
"Indenture" means the Junior Subordinated Indenture, dated
as of November 20, 1998, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"LIBOR" means, with respect to a Determination Date, the
London interbank offered rate (expressed as a percentage per
annum) a three-month Eurodollar deposits determined in following
order of priority:
(i) the rate (expressed as a percentage per annum)
for Eurodollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of
11:00 am (London time) on the related
Determination Date;
(ii) if such rate does not appear on Telerate Page
3750 as of 11:00 a.m. (London time) on the
related Determination Date, 3-month LIBOR will be
the arithmetic mean of the rates (expressed as
percentages per annum) for Eurodollar deposits
having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on
such Determination Date;
(iii)if such rate does not appear on Reuters Page LIBO
as of 11:00 a.m. (London time) on therelated
Determination Date, the Calculation Agent will
request the principal London offices of four
leading banks in the London interbank market to
provide such banks' offered quotations (expressed
as percentages per annum) to prime banks in the
London interbank market for Eurodollar deposits
having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at
least two quotations are provided, 3-month LIBOR
will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation
Agent will request four major New York City banks
to provide such banks' offered quotations
(expressed as percentages per annum) to leading
European banks for three-month loans in
Eurodollars as of 11:00 a.m. (London time) on
such Determination Date. If at least two such
quotations are provided, 3-month LIBOR will be
the arithmetic mean of such quotations; and
5
<PAGE>
(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR
will be 3-month LIBOR determined with respect to
the Interest Period immediately preceding such
current Interest Period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters
Page LIBO, as the case may be, as of 11:00 a.m. (London time) on
the related Determination Date is superseded on Telerate Page
3750 or Reuters Page LIBO, as the case may be, by a corrected
rate before 12:00 noon (London time) on such Determination
Date, the corrected rate as so substituted on the applicable
page will be the applicable 3-month LIBOR for such Determination
Date.
All percentages resulting from any calculations on the
Trust Securities will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
The Calculation Agent will, upon the request of the holder
of any Preferred Securities, provide the Distribution Rate then
in effect. All calculations made by the Calculation Agent in
the absence of manifest error shall be conclusive for all
purposes and binding on the Depositor and the holders of the
Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest, adverse
claim, 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 portion of the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture,
allocated to the Common Securities and to the Preferred
Securities pro rata based upon the relative Liquidation Amounts
of such classes the proceeds of which will 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 dissolution 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.
"Liquidation Amount" means the stated amount of $1,000 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 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President or a Vice
President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Trust Agreement shall include:
6
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<PAGE>
(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;
(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.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities
theretofore executed and delivered under this Trust Agreement,
except:
(a) Trust Securities theretofore canceled by the
Property Trustee or delivered to the Property Trustee for
cancellation;
(b) Trust Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Property Trustee or any Paying Agent for the Holders of
such Trust Securities; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in
exchange for or in lieu of which other Preferred Securities have
been executed and delivered pursuant to Sections 5.4, 5.5,
5.11 and 5.13;
provided, however, that in determining whether the Holders of
the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (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 act with respect to such
Preferred Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 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
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in respect of the Debentures will be held and from which the
Property Trustee, through the Paying Agent, shall make payments
to the Securityholders in accordance with Sections 4.1 and 4.2.
"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
$1,000 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.
"Preferred Securities Guarantee" means the Preferred
Securities Guarantee Agreement extended by the Depositor
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.
"Preferred Securities Guarantee Agreement" means the Trust
Preferred Securities Guarantee Agreement dated November 20, 1998
between the Depositor, as Guarantor, and Wilmington Trust
Company, as trustee, evidencing the Preferred Securities
Guarantee.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the 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,
plus the related amount of the premium, if any, 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 8.10.
"Responsible Officer" when used with respect to the
Property Trustee means any officer assigned to the Corporate
Trust Office, including any managing director, principal, vice
president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by
any of the above designated officers and having direct
responsibility for the administration of this Trust Agreement,
and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
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"Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as
may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers' Association
as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollars deposits).
"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
(i) all exhibits hereto and (ii) 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939
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 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 Common Securities Guarantee
and the Preferred Securities 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 November 17, 1998, among the Trust, the Depositor,
Wilmington Savings Fund Society, Federal Savings Bank,
and the underwriter named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME.
The Trust continued hereby shall be known as "WSFS Capital
Trust I" as such name may be modified from time to time by the
Administrative Trustees following written notice to the
Holders of Trust Securities and the other Trustees, in which
name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. 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,
Attention: Corporate Trust Administration, or such other address
in the State of Delaware as the Delaware Trustee may designate
by written notice to the
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Securityholders and the Depositor. The principal executive
office of the Trust is c/o WSFS Financial Corporation, 838
Market Street, Wilmington, Delaware 19899.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the
sum of $10, which constituted the initial Trust Property. The
Depositor shall pay organizational expenses of the Trust as they
arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee
pursuant to the Expense Agreement. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES.
On November 17, 1998 the Depositor, on behalf of the Trust
and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriter named
in the Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of 50,000 Preferred Securities
having an aggregate Liquidation Amount of $50,000,000, against
receipt of such aggregate purchase price of such Preferred
Securities of $50,000,000, which amount the Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. 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 5.2 and deliver
to the Depositor Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of 1,547
Common Securities having an aggregate Liquidation Amount of
$1,547,000 against payment by the Depositor of such amount,
which amount such Administrative Trustee shall promptly deliver
to the Property Trustee. 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 Trust and having an aggregate principal
amount equal to $51,547,000, 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
$51,547,000 (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section
2.4 and (ii) the first sentence of this Section 2.5).
SECTION 2.6. 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, advisable or incidental thereto (such as
registering the transfer of the Trust Securities). The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set
forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth
herein for the benefit of the Trust and 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 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to
the limitations set forth in paragraph (b) of this Section and
Section 2.6, and in accordance with the following provisions (i)
and (ii), the Trustees shall have the authority to enter into
all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the 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 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 the Certificate Depositary
Agreement and such other agreements 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 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) registering transfer of the Trust Securities
in accordance with this Trust Agreement;
(H) 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;
(I) unless otherwise determined by the
Depositor, the Property Trustee or the Administrative
Trustees, or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone
or together with any or all of the Administrative
Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this
Trust Agreement; and
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(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time
determine is necessary or advisable to give effect to
the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the
effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and
any other payments made in respect of the Debentures
in the Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the
Trust Securities;
(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 and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the State
of Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of
such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any
action incidental to the foregoing as the Property
Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder) and, within five Business
Days after the occurrence of any Event of Default
actually known to the Property Trustee, to give notice
thereof to the Securityholders; and
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(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of
the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section
2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of
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the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States federal income
tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on any
of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a
registration statement on the appropriate form in relation
to the Preferred Securities, 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, the Preferred Securities
Guarantee and the determination of any and all such acts,
other than actions which must be taken by or on behalf of
the Trust, and the advice to the Trustees of actions they
must take on behalf of the Trust, and the preparation for
execution and filing of 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
New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(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 will not be deemed to be an "investment company" required
to be registered under the 1940 Act, or fail to be classified as
a grantor trust for United States federal income tax purposes
and so that the Debentures will be treated as indebtedness of
the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative
Trustee determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the
holders of the Preferred Securities.
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SECTION 2.8. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust
Property.
SECTION 2.9. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all
times in the Property Trustee (in its capacity as such) and
shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and
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 in and withdrawals from the
Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the
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 4.1. DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including of
Additional Interest, as defined in the Indenture) are made on
the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are
funds of the Trust available for the payment of
Distributions. Distributions shall accrue from November
20, 1998, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment
of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly in arrears on March 1, June 1,
September 1 and December 1 of each year, commencing on
March 1, 1999. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding
calendar year, payment of such Distribution shall be made
on the immediately preceding Business Day, in each case
with the
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same force and effect as if made on such date (each date on
which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Debentures
are made when due (and before giving effect to Additional
Amounts, if applicable), Distributions on the Trust
Securities shall be payable at a rate per annum reset
quarterly equal to 3-month LIBOR plus 250 basis points of
the Liquidation Amount of the Trust Securities. The
Distribution Rate on the Trust Preferred Securities for any
Distribution Period will be effective as of the first day
of such Distribution Period. The Distribution Rate on the
Trust Preferred Securities for each Distribution Period
will be determined on the Determination Date for such
Distribution Period and be a per annum rate equal to
3-month U.S. dollar LIBOR plus 250 basis points. The
amount of Distributions payable for any full period shall
be computed on the basis of actual days elapsed and 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. The amount of Distributions
payable for any period shall include the Additional
Amounts, if any.
(iii) Distributions on the Trust Securities shall
be made by the Property Trustee from the Payment Account
and shall be payable on each Distribution Date only to the
extent that the Trust has funds then on hand and available
in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the 15th
day of the month prior to the relevant Distribution Date.
(c) The Calculation Agent shall, as soon as practicable
after 11:00 a.m., London, England time, on each Determination
Date, determine the Distribution Rate and inform the Debenture
Trustee, the Property Trustee and the Paying Agent. Unless
otherwise provided by the Property Trustee, the Paying Agent
will calculate the amount of distributions payable in
respect of the following Distribution Period (the "Distribution
Amount"). The Distribution Amount shall be calculated by
applying the Distribution Rate to the liquidation amount of each
Trust Security outstanding at the commencement of the
Distribution Period, multiplying each such liquidation amount by
the actual number of days in the Distribution Period concerned
divided by 360 and rounding the resulting figure to the nearest
cent (with one-half cent or more being rounded upwards). The
determination of the Distribution Rate by the Calculation Agent
and the Distribution Amount by the Paying Agent will (in the
absence of willful default, bad faith or manifest error) be
final, conclusive and binding on all concerned.
SECTION 4.2. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust will be required to
redeem, subject to Section 4.3, a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Trust Securities to be redeemed, at such Holder's
address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
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(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to
be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security
to be redeemed and that Distributions thereon will cease
to accrue 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 funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption
in respect of any Preferred Securities, then, by 12:00 noon, New
York City time, on the Redemption Date, subject to Section
4.2(c), with respect to Preferred Securities held in book-entry
form, the Property Trustee will irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to
pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. With respect to
Preferred Securities held in certificated form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders
of such Trust Securities as they appear on the Register for the
Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date
of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but
without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day,
in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust
or by the Depositor pursuant to the Common Securities Guarantee
and the Preferred Securities Guarantee, Distributions on such
Trust Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the recordholders thereof as they
appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business Day prior
to the relevant Redemption Date; provided, however, that in the
event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the 15th
day of the month prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the
Preferred Securities. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis (based upon
Liquidation Amounts) 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
$1,000 or an integral multiple of $1,000 in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination
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larger than $1,000. The Property Trustee shall promptly notify
the Security 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 that has been or is to be redeemed.
SECTION 4.3. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made, subject to
Section 4.2(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, 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 any Debenture Event of Default, the Holder of
Common Securities will be deemed to have waived any right to act
with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Event of Default
under this Trust Agreement with respect to the Preferred
Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders
of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee to act on
their behalf.
SECTION 4.4. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made
by check mailed to the address of the Person entitled thereto
as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in
immediately available funds, which shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between
the Property Trustee and the Common Securityholder.
SECTION 4.5. 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 provided on such form, together with an annual
financial statement of the Trust. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy
of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and
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backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders
under the Trust Securities.
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the
Property Trustee shall, at the written request of an
Administrative Trustee or the Depositor 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 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS.
Notwithstanding any payments made to any Holder of
Preferred Securities (and any Owner with respect thereto),
pursuant to Section 5.8 of the Indenture or Section 5.14 of this
Trust Agreement, the Depositor shall remain obligated to pay
principal of or interest on Debentures and the Depositor shall
be subrogated to the rights of the Holder (and Owner) of such
Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Depositor
to such Holder (and Owner) pursuant to either of such Sections.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 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 5.2. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in
minimum denominations of $1,000 Liquidation Amount and integral
multiples of $1,000 in excess thereof, and the Common
Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the
Trust by manual signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to
the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Sections 5.4,
5.11 and 5.13.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
At the Closing Date, the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.4 and 2.5, to be executed on
behalf of the Trust and delivered to or upon the written order
of the Depositor, signed by its chairman of the board, its
president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.
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SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Preferred Securities
Certificates (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 5.10 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Depositor shall
be the initial Securities Registrar.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.8, the Administrative Trustees
or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees.
The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called
for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and
of a like aggregate Liquidation Amount upon surrender of
the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.8.
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 an Administrative 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 an Administrative
Trustee in accordance with such Person's customary practice.
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 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate
and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate
of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of
an undivided beneficial interest in the assets of the Trust, as
if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any
time.
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SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent or 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, the Paying Agent nor the
Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
Each Holder 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 5.8. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees
in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate WSFS Financial
Corporation, 838 Market Street, Wilmington, Delaware 19899 Attn:
Mark A. Turner, as its 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 5.9. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make Distributions to
Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for
the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove 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 Bank, and any
co-paying agent chosen by the Bank, 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 Bank
shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein
shall apply to the Bank also in its role as Paying Agent, for so
long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger
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of the Depositor into another corporation, or any conveyance,
transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section
8.1 of the Indenture, any attempted transfer of the Common
Securities 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 5.11. BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
COMMON SECURITIES CERTIFICATE.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive
Preferred Securities Certificate representing such Owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
(ii) the Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the
Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions
on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving
of instructions or directions to Owners of Preferred
Securities evidenced by Book-Entry Preferred Securities
Certificates) as the sole Holder of Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this
Trust Agreement, the provisions of this Section 5.11 shall
control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and
the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depositary
Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section
5.13, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(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 5.12. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until
Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall
give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
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SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Trustees in writing that
the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate
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the book-entry system through the Clearing Agency or (c) after
the occurrence of a Debenture Event of Default, Owners of
Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation
Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Owners of Preferred
Securities Certificates, then the Administrative Trustee shall
notify the Clearing Agency and the Clearing Agency shall notify
all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting
the same. Upon surrender to the Administrative Trustees of the
typewritten Preferred Securities Certificate or Certificates
representing the Book Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions,
the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the
Securities Registrar nor the Trustees shall be liable for any
delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred
Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution
thereof by the Administrative Trustees or any one of them.
SECTION 5.14. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.9, 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 and when
issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable by
the Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the
Debenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding 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.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by
the Debenture Trustee as in the Indenture provided, the Holders
of a majority in Liquidation Amount of the Preferred Securities,
by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration
and its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest
(including any Additional Interest (as defined in the
Indenture)) on all of the Debentures,
(B) the principal of (and premium, if any, on)
any Debentures which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
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(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of
the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the
Debentures, other than the non-payment of the principal of
the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The holders of a majority in aggregate Liquidation Amount
of the Preferred Securities may, on behalf of the Holders of all
the Preferred Securities, waive any past default under the
Indenture, except a default in the payment of principal or
interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited
with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each
outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment
thereof, by Holders of the Preferred Securities all or part of
which is represented by Book-Entry Preferred Securities
Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled
to join in such notice, which record date shall be at the close
of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to
join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which
is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written
notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this Section
5.14(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject
to the terms of this Trust Agreement and the Indenture, upon a
Debenture Event of Default specified in Section 5.1(1) or 5.1(2)
of the Indenture, any Holder of Preferred Securities shall have
the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for
enforcement of payment to such Holder of the principal amount of
or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a
"Direct Action"). Except as set forth in Section 5.14(b) and
this Section 5.14(c), the Holders of Preferred Securities shall
have no right to exercise directly any right or remedy available
to the holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14,
8.10 and 10.2 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
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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 Section 5.13 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 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 Preferred
Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
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 its tax advisors to the effect
that such action shall not cause the Trust to fail to be
classified as a grantor trust for United States Federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect
the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement
or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities
as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a
majority in Liquidation Amount of the Outstanding Preferred
Securities. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if,
as a result of such amendment, it would cause the Trust to fail
to be classified as a grantor trust for United States federal
income tax purposes.
SECTION 6.2. 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 10.8 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 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be
held. The Administrative Trustees, however, shall call a meeting
of Preferred Securityholders to vote on any matter upon
the written request of the Preferred Securityholders of record
of 25% of the Outstanding Preferred Securities (based upon their
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 Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their Liquidation
Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
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 Liquidation Amount)
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held by the Preferred Securityholders of record present, either
in person or by proxy, at such meeting shall constitute the
action of the Preferred Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each
1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such
Securityholders are entitled to vote.
SECTION 6.5. 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. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a 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 6.6. 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 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.
SECTION 6.7. 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 a 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 6.8. ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders or
Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly
appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.1) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
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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.
The ownership of Preferred Securities shall be proved by
the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same
Trust Security and the Securityholder of every Trust Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders and
the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Trustee
under this Article VI, then the determination of such matter by
the Property Trustee, pursuant to Section 8.3(b) hereof, shall
be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly
against the Depositor under the Common Securities Guarantee and
the Preferred Securities Guarantee to enforce its rights under
the Preferred Securities Guarantee without first instituting a
legal proceeding against the Guarantee Trustee (as defined in
the Preferred Securities Guarantee), the Trust or any person or
entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and
the Property Trustee, the records of the Trust shall be open to
inspection by Securityholders during normal business hours
for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Property Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing under the
existing and in good standing under the laws of the State
of Delaware;
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(b) the Property Trustee 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) the Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee 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;
(e) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and the Delaware
Trustee and constitutes the valid and legally binding
agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them 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;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and the
Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i)
violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (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 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, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by
the Property Trustee or the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by
the Property Trustee or the Delaware Trustee (as appropriate in
context) 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, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of
each of the Property Trustee's and the Delaware Trustee's
knowledge, threatened against or affecting the Property Trustee
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 Property Trustee or the Delaware Trustee, as
the case may be, to enter into or perform its obligations as one
of the Trustees under this Trust Agreement.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the
benefit of the Securityholders that:
(a) the Trust Securities Certificates issued at the
Closing Date on behalf of the Trust have been duly authorized
and will have been, duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
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(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 Property Trustee or the Delaware Trustee,
as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. 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. 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.
Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee or the Delaware Trustee from liability
for its own grossly negligent action, its own grossly negligent
failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to
the Trust or to the Securityholders, such Administrative Trustee
or the Delaware 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 Administrative Trustees or the Delaware
Trustee otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other
duties and liabilities of the Administrative Trustees or the
Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it will 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 8.1(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this
Trust Agreement or, in the case of the Property Trustee, in the
Trust Indenture Act.
(c) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(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;
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(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
3.1 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 default or misconduct of the
Administrative Trustees or the Depositor.
(vi) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust
Agreement.
(vii) no provision of the Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercises
of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or
adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 8.2. CERTAIN NOTICES.
Within five Business Days after the occurrence of any Event
of Default actually known to the Responsible Officer of the
Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default
shall have been cured or waived.
Within five Business Days after the receipt of notice of
the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Indenture, the
Administrative Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the
Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
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SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be 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,
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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 any 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 ten Business Days after it has delivered
such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be
less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent
with this Trust Agreement as it shall deem advisable and in the
best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement
shall be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a
matter be established before undertaking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers'
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 or any filing under tax
or securities laws) or any rerecording, refiling or
reregistration thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in
accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
security or indemnity reasonable to it 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
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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;
(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; and
(l) the Property Trustee shall not be required to give any
bond or surety in respect of the performance of its powers and
duties hereunder.
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 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the 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.
SECTION 8.5. MAY HOLD SECURITIES.
Except as provided in the definition of the term
"Outstanding" in Article I, any Trustee or any other agent of
any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities
and, subject to Sections 8.8 and 8.13, may otherwise
deal with the Trust with the same rights it would have if it
were not a Trustee or such other agent.
SECTION 8.6. 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) as
specified in a separate agreement between any of the Trustees
and the Depositor.
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all 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 its negligence
or bad faith; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate
of any Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any
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Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense
or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (ordinary
negligence in the case of the Property Trustee) or willful
misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section
8.6.
The Depositor and any Trustee may engage in or possess an
interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the business of the Trust, and the Trust and the Holders of
Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Neither the Depositor, nor any
Trustee, shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of
a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right
to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the
Depositor or its Affiliates.
SECTION 8.7. 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, the combined capital
and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of 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 8.8. 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.
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SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Administrative Trustees,
by agreed action of the majority of such Trustees, shall have
power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose
join with the Administrative Trustees in the execution,
delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved
by the Property Trustee either to act as co-trustee, jointly
with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property,
title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor
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 shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United
States that shall act through one or more persons authorized to
bind such entity.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(a) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees specified hereunder shall be exercised solely by
such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon
the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance
by the successor Trustee required by Section 8.11 shall not have
been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Trust, any court of competent
jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of
the 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
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.
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, and the retiring Trustee shall
comply with the applicable requirements of Section 8.11. If the
Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be, at a time
when a Debenture Event of Default shall have occurred and be
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, and such successor Trustee shall
comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a
Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall
promptly appoint a successor Administrative Trustee or
Administrative Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
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 10.8 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.
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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 the remaining
Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with
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the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee
such successor Trustee so appointed shall execute, acknowledge
and deliver to the Trust 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 Depositor 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 if the
Property Trustee is the resigning Trustee shall duly assign,
transfer and deliver to the successor Trustee all property and
money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor
Relevant Trustee, the retiring Relevant Trustee and each
successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (a) 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 Securities and the Trust and (b) shall add to or change
any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
Trust by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and
delivery of such amendment 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; 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.
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
first or second preceding paragraph, as the case may be.
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.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Property Trustee or the
Delaware 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 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 corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto.
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SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be
due and payable as therein expressed or by declaration
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or otherwise and irrespective of whether the Property Trustee
shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make
such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments
directly to the Holders, to first pay to the Property
Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee,
its agents and counsel, and any other amounts due the Property
Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided however, that the Trustee may on
behalf of the Holders vote for the election of a trustee in
bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than March 31 of each year commencing with
March 31, 1999, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the
Depositor, a brief report dated as of the immediately preceding
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has
complied with all of its obligations under this Trust Agreement
during the twelve-month period (or, in the case of the
initial report, the period since the Closing Date) ending with
such December 31 or, if the Property Trustee has not complied in
any material respect with such obligations, a description of
such noncompliance; and
(iii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance
of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
each national stock exchange, the Nasdaq National Market or
such other interdealer quotation system or self-regulatory
organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
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SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents,
reports and information as required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of
the Trust Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with 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 8.17. 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 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees
and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing;
and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to 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 this Trust Agreement, as set forth herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically
dissolve on December 31, 2029 (the "Expiration Date"), following
the distribution of the Trust Property in accordance with
Section 9.4.
SECTION 9.2. 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) the written direction to the Property Trustee from the
Depositor at any time to dissolve the Trust and distribute
Debentures to Securityholders in exchange for a Like Amount of
the Trust Securities (which direction is optional and wholly
within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by
a court of competent jurisdiction.
SECTION 9.3. TERMINATION.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section
4.2, of all amounts required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of
any expenses owed by the Trust; (c) the discharge of all
administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect
to the Trust or the Securityholders and (d) the filing of a
certificate of cancellation with the Delaware Secretary of State
pursuant to Section 3810 of the Delaware Business Trust Act by
the Property Trustee.
SECTION 9.4. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b) or (d) of Section 9.2 occurs or upon the Expiration Date,
the 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 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail,
postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like
Amount of Debentures; and
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(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for certificates representing the Like Amount
of the Debentures, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in
order to effect the liquidation of the Trust and distribution of
the Debentures to Securityholders, the Administrative Trustees
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 9.2(c) or 9.4(d) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like
Amount of Debentures will be issued to holders of Trust
Securities Certificates, upon surrender of such certificates to
the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures
listed on the Nasdaq National Market or on such other exchange,
interdealer quotation system or self-regulatory organization as
the Preferred Securities are then listed, (iv) any Trust
Securities Certificates not so surrendered for exchange will 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 the
related Trust Securities until such Certificates are so
surrendered (and until such Certificates are so surrendered, no
payments of interest or principal will be made to Holders of
Debentures represented by such Certificates) and (v) all rights
of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive a Like Amount of
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 9.4, whether because of an order for
dissolution entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Administrative Trustees not to be
practical, the Trust Property shall be liquidated, and the Trust
shall be dissolved, wound-up or terminated, by the
Administrative Trustees in such manner as the Administrative
Trustees determine. In such event, on the date of the
dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such
dissolution, 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 will
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
Holders of Preferred Securities shall have a priority over the
Holders of Common Securities.
SECTION 9.5. 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 body, except pursuant to this Section 9.5.
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, 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 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
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to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of
such successor entity possessing 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 will be listed upon notification of issuance, on any
national securities exchange or other organization on which the
Preferred Securities are then listed or traded, if any, (iv)
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded
by any nationally recognized statistical rating organization,
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) 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 will be
required to register as an investment company under the 1940 Act
and (viii) the Depositor or any permitted successor or assignee
owns all of the Common Securities of such successor entity and
guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the
Preferred Securities Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of holders of 100%
in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust
for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. 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 10.2. AMENDMENT.
(a) This Trust Agreement may be amended from time to time
by the Property Trustee, the Administrative Trustees and the
Delaware Trustee, without the consent of any Securityholders,
(i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters
or questions arising under this Trust Agreement, which shall not
be inconsistent with the other provisions of this Trust
Agreement, or (ii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under
the 1940 Act; provided, however, that in the case of clause (i),
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 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees
with (i) the consent of Trust Securityholders representing not
less than a majority (based upon
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Liquidation Amounts) of the Trust Securities then Outstanding
and (ii) receipt by the Trustees of an opinion of its tax
advisors to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States federal income tax purposes or an opinion of
counsel that such amendment will not affect the Trust's
exemption from status of an investment company under the 1940
Act.
(c) In addition to and notwithstanding any other provision
in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance
with Section 6.3 or 6.6 hereof), this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution
on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the
right of a Securityholder to institute suit for the enforcement
of any such payment on or after such date; notwithstanding any
other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with
Section 6.3 or 6.6 hereof), this paragraph (c) of this Section
10.2 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 1940 Act or 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 10.3. SEPARABILITY.
In case any provision in this Trust Agreement or in the
Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.4. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE 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.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security
shall be a day that is not a Business Day, then such payment
need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and
no interest shall accrue thereon for the period after such date.
41<PAGE>
<PAGE>
SECTION 10.6. 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, including any successor by operation of
law. Except in connection with a consolidation, merger or sale
involving the Depositor that is permitted under Article Eight of
the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only
and shall not affect the construction of this Trust Agreement.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
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 WSFS Financial
Corporation, 838 Market Street, Wilmington, Delaware 19899
Attention: Mark A. Turner, facsimile no.: (302) 571-6842. 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, the
Delaware 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
Wilmington Trust Company, One Rodney Square, Wilmington,
Delaware 19801; (b) with respect to the Delaware Trustee, to
Wilmington Trust Company, One Rodney Square, Wilmington,
Delaware 19801; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of WSFS
Capital Trust I." Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
SECTION 10.9. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the
benefit of the Securityholders that, until at least one year and
one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any Bankruptcy Laws or
otherwise join in the commencement of any proceeding against the
Trust under any Bankruptcy Law. In the event the Depositor takes
action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such
petition by the Depositor against the 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 and such other defenses, if any, as
counsel for the Trustee or the Trust may assert. The provisions
of this Section 10.9 shall survive the termination of this Trust
Agreement.
42<PAGE>
<PAGE>
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Trust Agreement and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(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 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 10.11. COUNTERPARTS.
This Trust Agreement may be executed in one or more
counterparts.
SECTION 10.12. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
PREFERRED SECURITIES 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 PREFERRED SECURITIES GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
43<PAGE>
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these
present to be executed as of the day and year first above
written.
WSFS FINANCIAL CORPORATION
By:/s/ Marvin N. Schoenhals
--------------------------------
Name: Marvin N. Schoenhals
Title: Chairman and President
WILMINGTON TRUST COMPANY,
as Property Trustee
By:/s/ David A. Vanaskey
--------------------------------
Name: David A. Vanaskey
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:/s/ David A. Vanaskey
--------------------------------
Name: David A. Vanaskey
Title: Assistant Vice President
/s/ Marvin N. Schoenhals
--------------------------------
Marvin N. Schoenhals,
as Administrative Trustee
/s/ Mark A. Turner
--------------------------------
Mark A. Turner,
as Administrative Trustee
/s/ David J. Martin
--------------------------------
David J. Martin,
as Administrative Trustee
44<PAGE>
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST OF WSFS CAPITAL TRUST I
This Certificate of Trust of WSFS Capital Trust I (the
"Trust") is being duly executed and filed on behalf of the Trust
by the undersigned, as trustee, to form a business trust under
the Delaware Business Trust Act (12 Del. C. Section 3801, et.
seq.) (the "Act").
1. Name. The name of the business trust is WSFS Capital
Trust I
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Wilmington
Trust Company, 1100 North Market Street, Wilmington, Delaware
19890-001, Attn: Corporate Trust Department.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, has duly executed this
Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ Donald G. Mackelcan
-----------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ Marvin N. Schoenhals
-----------------------------------
Marvin N. Schoenhals, as Trustee
/s/ Mark A. Turner
-----------------------------------
Mark A. Turner, as Trustee
/s/ David J. Martin
-----------------------------------
David J. Martin, as Trustee
45<PAGE>
<PAGE>
EXHIBIT B
LETTER OF REPRESENTATIONS
(To be Completed by Issuer and Agent)
WSFS CAPITAL TRUST I
WILMINGTON TRUST COMPANY
November ___, 1998
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
55 Water Street, 49th Floor,
New York, New York 10041-0099
Re: WSFS Capital I Floating Rate Cumulative Trust
Preferred Securities (CUSIP #929327 AA 2)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to
certain matters relating to the above-referenced issue (the
"Securities"). Issuer is selling the Securities to Sandler
O'Neill & Partners LP (the "Initial Purchaser") pursuant to an
Underwriting Agreement dated November 17, 1998 (the "Document").
Initial Purchaser will take delivery of the Securities through
The Depository Trust Company ("DTC"). Wilmington Trust Company
is acting as transfer agent, paying agent and registrar with
respect to the Securities (the "Agent").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its Rules with
respect to the Securities, the Issuer and Agent make the
following representations to DTC:
1. Prior to the closing on the Securities on November 20,
1998, there shall be deposited with DTC one Security Certificate
registered in the name of DTC's Preferred Securities nominee,
Cede & Co., for each of the Securities with the offering value
set forth on Schedule A hereto, the total of which represents
100% of the offering value of such Securities. If, however,
the offering value of any Security exceeds $200 million, one
certificate will be issued with respect to each $200 million of
offering value and an additional certificate will be issued with
respect to any remaining offering value. Each Security
certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest
herein.
46<PAGE>
<PAGE>
If the Securities will be held by Agent as custodian for DTC,
such Security certificate shall remain in Agent's custody
pursuant to the provisions of the FAST Balance Certificate
Agreement currently in effect between Agent and DTC.
2. Issuer: (a) understands that DTC has no obligation to,
and will not, communicate to its Participants or to any person
having an interest in the Securities any information contained
in the Security certificate(s); and (b) acknowledges that
neither DTC's Participants nor any person having an interest in
the Securities shall be deemed to have notice of the provisions
of the Security certificate(s) by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or
voting by holders of the Securities, Issuer or Agent shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall
send notice of such record date to DTC not less than 15 calendar
days in advance of such record date. Notices to DTC pursuant
to this Paragraph by telecopy shall be sent to DTC's
Reorganization Department at (212) 709-6896 or (212) 709-6897,
and receipt of such notices shall be confirmed by telephoning
(212) 709-6870. Notices to DTC pursuant to this Paragraph by
mail or by any other means shall be sent to DTC's Reorganization
Department as indicated in Paragraph 7.
4. In the event of a stock split, recapitalization,
conversion, or any other similar transaction resulting in the
cancellation of all or any part of the Securities represented
thereby, the Agent shall send DTC a notice of such event as soon
as practicable, but in no event less than five business days
prior to the effective date of such event.
5. In the event of a full or partial redemption, Issuer
or Agent shall send a notice to DTC specifying: (a) the amount
of the redemption or refunding; (b) in the case of a refunding,
the maturity date(s) established under the refunding; and (c)
the date such notice is to be distributed to Security holders or
published (the "Publication Date"). Such notice shall be sent
to DTC by a secure means (e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed
to assure that such notice is in DTC's possession no later than
the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer
or Agent shall forward such notice either in a separate secure
transmission for multiple CUSIP numbers (if applicable) which
includes a manifest or list of each CUSIP number submitted in
the transmission. (The party sending such notice shall have a
method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not
less than 30 days nor more than 60 days prior to the redemption
date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to
this Paragraph by telecopy shall be sent to DTC's Call
Notification Department at (516) 227-4039 or (516) 227-4190. If
the party sending the notice does not receive a telecopy receipt
from DTC confirming that the notice has been received, such
party shall telephone (516) 227-4070. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of an offering or issuance of rights
with respect to the Securities outstanding, Agent shall send
DTC's Dividend and Reorganization Departments a notice
specifying: (a) the amount of and conditions, if any, applicable
to such rights offering or issuance; (b) any applicable
expiration or deadline date, or any date by which any action on
the part of the holders of such Securities is required; and (c)
the Publication Date of such notice.
The Publication Date will be as soon as practicable after
the announcement by the Company of any such offering or issuance
of rights with respect to the Securities represented
thereby. DTC requires that the Publication Date be not less
than 30 days nor more than 60 days prior to the related payment
date, or issuance date, respectively.
47<PAGE>
<PAGE>
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Dividend Department at (212) 709-1623, and
receipt of such notices shall be confirmed by telephoning
(212) 709-1282. Notices to DTC pursuant to the above by mail or
by any other means shall be sent to:
Supervisor, Stock Dividends
Dividend Department
7 Hanover Square, 24th Floor
New York, New York 10004-2695
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Reorganization Department a (2212) 709-1093,
and receipt of such fax shall be confirmed by telephoning (212)
709- 1063. Notices to DTC pursuant to the above by mail or by
any other means shall be sent to:
Supervisor, Rights Offerings
Reorganization Department
7 Hanover Square; 23rd Floor
New York, New York 10004-2695
7. In the event of any invitation to tender the
Securities (including mandatory tenders, exchanges, and capital
changes), notice by Issuer or Agent to Security holders
specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner
set forth in Paragraph 5. Notices to DTC pursuant to this
Paragraph and notices of other corporate actions by telecopy
shall be sent to DTC's Reorganization Department at (212)
709-1093 or (212) 709-1094 and receipt of such notice shall be
confirmed by telephoning (212) 709-6884. Notices to DTC
pursuant to the above by mail or any other means shall be sent
to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
8. All notices and payment advices sent to DTC shall
contain the CUSIP number of the Securities (listed on Schedule A
hereto) and the accompanying description of the Securities,
which, as of the date of this letter, is "WSFS Capital Trust I
Floating Rate Cumulative Trust Preferred Securities.
9. Issuer or Agent shall provide written notice of
dividend payment information to a standard dividend announcement
service subscribed to by DTC as soon as the information is
available. In the event that no such service exists, Issuer or
Agent shall provide such notice directly to DTC electronically,
as previously arranged by Issuer or Agent and DTC, as soon as
the payment information is available. If electronic
transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212)
709-1723 or (212) 709- 1686, and receipt of such notices shall
be confirmed by telephoning (2112) 709-1270. Notice to DTC
pursuant to the above by mail or by any other means shall be
sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, New York 10004-2695
48<PAGE>
<PAGE>
After establishing the amount of payment to be made on the
Securities in question, Issuer or Agent will notify DTC's
Dividend Department of the payment and payment date preferably
five, but not less than two, business days prior to the
effective date of such transaction.
10. Issuer or Agent shall provide CUSIP-level detail for
dividend payments to DTC no later than noon (Eastern Time) on
the payment date.
11. Dividend payments and cash distributions shall be
received by Cede & Co. as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired as
follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Redemption payments shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns, in same-day funds
no later than 2:30 p.m. (Eastern Time) on payment date.
Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Reorganization payments resulting from corporate
actions (such as tender offers or mergers) shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in
same- day funds no later than 2:30 p.m. (Eastern Time) on
payment date. Absent any other arrangements between Agent and
DTC, Such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number
or address as the number or address to which notices or payments
of dividends, distributions, or redemption proceeds may
be sent.
15. In the event of a redemption, acceleration, or any
other similar transaction (e.g., tender made and accepted in
response to Issuer's or Agent's invitation) necessitating a
reduction in the aggregate principal amount of Securities
outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or
Agent to issue and authenticate a new Security Certificate; or
(b) may make an appropriate notation on the Security Certificate
indicating the date and amount of such reduction in the number
of Securities outstanding, except in the case of final
redemption, in which case the certificate will be presented
to Issuer or Agent prior to payment, if required.
49<PAGE>
<PAGE>
16. In the event that Issuer determines that beneficial
owners of Securities shall be able to obtain certificated
Securities, Issuer or Agent shall notify DTC of the availability
of certificates. In such event, Issuer or Agent shall issue,
transfer, and exchange certificates in appropriate amounts, as
required by DTC and others.
17. DTC may discontinue providing its services as
securities depositary with respect to the Securities at any time
by giving reasonable notice to the Issuer or Agent (at which
time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate
fully with DTC by taking appropriate action to make available
one or more separate certificates evidencing Securities to any
DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to
advance funds on behalf of Issuer.
19. This Letter of Representations may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
20. This Letter of Representations is governed by, and
shall be construed in accordance with, the laws of the State of
New York.
21. The following riders, attached hereto, are hereby
incorporated into this Letter of Representations.
Very truly yours,
WSFS CAPITAL TRUST I
(as Issuer)
By:______________________
WILMINGTON TRUST COMPANY
as Trustee and Agent
By:______________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:_________________________
Authorized Officer
50<PAGE>
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EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER
OBLIGATION OF A BANK, AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION
CERTIFICATE NUMBER ___ NUMBER OF COMMON SECURITIES _____
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
WSFS CAPITAL TRUST I
FLOATING RATE COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
WSFS Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby
certifies that WSFS Financial Corporation (the "Holder") is the
registered owner of _____________________________________
(_____) common securities of the Trust representing beneficial
interests of the Trust and designated the Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities
are not transferable and any attempted transfer hereof shall be
void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of November
20, 1998, 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 Holder is entitled
to the benefit of the Common Securities Guarantee to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Common Securities Guarantee
Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered
office.
By acceptance, the Holder agrees to treat, for federal
income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership
in the Debentures.
Unless the Property Trustee's Certificate of Authentication
hereon has been properly executed, these Common Securities shall
not be entitled to any benefit under the Trust Agreement or be
valid or obligatory for any purpose.
51<PAGE>
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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
________, 1998.
WSFS CAPITAL TRUST I
By:________________________
Name:
Administrative Trustee
52<PAGE>
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EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of November 20, 1998, between WSFS
Financial Corporation, a Delaware corporation ("WSFS"), and WSFS
Capital Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities
(the "Common Securities") to and receive Debentures from WSFS
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 November 20, 1998 as the same may be amended from time to
time (the "Trust Agreement");
WHEREAS, WSFS will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase WSFS hereby
agrees shall benefit WSFS and which purchase WSFS acknowledges
will be made in reliance upon the execution and delivery of this
Agreement, WSFS and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY WSFS.
Subject to the terms and conditions hereof, WSFS 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
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 WSFS and Wilmington Trust Company, as guarantee trustee or
under this Agreement for any reason whatsoever. This Agreement
is continuing, irrevocable, unconditional and absolute.
53<PAGE>
<PAGE>
SECTION 1.3. WAIVER OF NOTICE.
WSFS hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and WSFS
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 WSFS
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, WSFS with respect to the happening
of any of the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against
WSFS and WSFS waives any right or remedy to require that any
action be brought against the Trust or any other person or
entity before proceeding against WSFS.
SECTION 1.6. SUBROGATION.
WSFS shall be subrogated to all (if any) rights of the
Trust in respect of any amounts paid to the Beneficiaries by
WSFS under this Agreement; provided, however, that WSFS shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Agreement.
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 WSFS and shall inure to the benefit of the
Beneficiaries.
54<PAGE>
<PAGE>
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 against receipt therefor 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 answer-back, if
sent by telex):
WSFS Capital Trust I
c/o WSFS Financial Corporation
838 Market Street
Wilmington, Delaware 19899
Facsimile No.: (302) 571-6842
Attention: Mark A. Turner
WSFS Financial Corporation
838 Market Street
Wilmington, Delaware 19899
Facsimile No.: (302) 571-6842
Attention: Mark A. Turner
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
This Agreement is executed as of the day and year first
above written.
WSFS FINANCIAL CORPORATION
By:_________________________
Name:
Title:
WSFS CAPITAL TRUST I
By:_________________________
Name:
Title:
55<PAGE>
<PAGE>
EXHIBIT E
This Preferred Security is a Global Certificate within the
meaning of the Trust Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Trust
Agreement and no transfer of this Preferred Security (other than
a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York) to WSFS Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede
& Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CERTIFICATE NUMBER NUMBER OF TRUST PREFERRED SECURITIES
P-________
CUSIP NO. 929327 AA 2
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
WSFS CAPITAL TRUST I
FLOATING RATE CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $1,000 PER TRUST PREFERRED SECURITY)
WSFS Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby
certifies that Cede & Co. (the "Holder") is the registered owner
of Fifty Thousand (50,000) preferred securities of the Trust
representing an undivided beneficial interest in the assets of
the Trust and designated the Floating Rate Cumulative Trust
Preferred Securities (liquidation amount $1,000 per Trust
Preferred Security) (the "Trust Preferred Securities"). The
Trust Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of
the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Preferred Securities are set forth
in, and this certificate and the Trust 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 November 20, 1998, as
the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Trust
Preferred Securities as set forth therein. The Holder is
entitled to the benefits of the Trust Preferred Securities
Guarantee Agreement entered into by WSFS Financial Corporation,
a Delaware corporation, and Wilmington Trust Company,
as guarantee trustee, dated as of November 20, 1998, (the "Trust
Preferred Securities Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement
and the Trust Preferred Securities Guarantee to the Holder
without charge upon written request to the Trust at its
principal place of business or registered office.
<PAGE>
Unless the Property Trustee's Certificate of Authentication
hereon ha been properly executed, these Trust Preferred
Securities shall not be entitled to any benefit under the Trust
Agreement or be valid or obligatory for any purpose.
56<PAGE>
<PAGE>
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 20th day of
November, 1998.
WSFS CAPITAL TRUST I
By: ________________________
Name:
Administrative Trustee
57<PAGE>
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to
in the within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY,
as Property Trustee
Dated:______________,____ By:_________________________
Authorized Signatory
58<PAGE>
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers
this Preferred Security to:
________________________________________________________________
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________
______________________________________
______________________________________
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date: ________________
Signature:____________________________________________________
(Sign exactly as your name appears on the other side
of this Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
<PAGE>
WSFS FINANCIAL CORPORATION
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE DECEMBER 1, 2028
OFFICERS' CERTIFICATE AND COMPANY ORDER
Pursuant to the Indenture dated as of November 20, 1998
(the "Indenture"), between WSFS Financial Corporation, a
Delaware corporation (the "Company") and Wilmington Trust
Company, as Debenture Trustee (the "Debenture Trustee") and
resolutions adopted by the Pricing Committee of the Company's
Board of Directors on November 17, 1998; this Officers'
Certificate is being delivered to the Debenture Trustee to
establish the terms of one series of securities (the
"Securities") in accordance with Section 3.1 of the Indenture,
to establish the form of the Securities of such series in
accordance with Section 2.1 of the Indenture, to request the
authentication and delivery of the Securities of such series
pursuant to Section 3.3 of the Indenture and to comply with the
provisions of Section 1.2 of the Indenture. This Officers'
Certificate shall be treated for all purposes under the
Indenture as a supplemental indenture thereto.
All conditions precedent provided for in the Indenture
relating to the establishment of (i) a series of Securities and
(ii) the form of Securities of such series have been complied
with.
Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Indenture.
I. ESTABLISHMENT OF SERIES OF SECURITIES PURSUANT
TO SECTION 3.1 OF THE INDENTURE
There are hereby established pursuant to Section 3.1 of
the Indenture a series of Securities which shall have the
following terms:
A. The Securities of such series shall bear the title
"Floating Rate Junior Subordinated Deferrable Interest
Debentures Due December 1, 2028."
B. The aggregate principal amount of such series of
Securities to be issued pursuant to this Officers' Certificate
and Company Order shall be limited to $51,547,000 (except for
Securities authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 of
the Indenture and except for any Securities which, pursuant to
Section 3.3 of the Indenture, are deemed never to have been
authenticated and delivered thereunder).
C. The date on which the principal of the Securities is
due and payable shall be December 1, 2028.
D. The Securities shall bear interest at a rate per annum
(based upon a 360-day year and actual days elapsed), reset
quarterly equal to 3-month LIBOR (as defined below) plus 250
basis points (the "Interest Rate") from and including the date
of original issuance or from and including the most recent
Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly in arrears
on the 1st day of March, June, September and December in each
year (each, an "Interest Payment Date"), commencing March 1,
1999, until the principal thereof is paid or made available for
payment. The Business Day next preceding an Interest Payment
Date shall be the "Regular Record Date" for the interest payable
on such Interest Payment Date. Accrued interest that is not paid
on such applicable Interest Payment Date will bear additional
interest on the amount thereof (to the extent permitted by law)
at the Interest Rate, compounded quarterly.
1<PAGE>
<PAGE>
The Interest Rate for any period for which interest is
payable (an "Interest Period") shall be determined on the
Determination Date (as defined below) for such Interest Period.
The Interest Period with respect to the Securities is each
successive period from and including an Interest Payment Date
(or November 20, 1998 in the case of the initial Interest
Period) to but excluding the next Interest Payment Date or
Stated Maturity, as the case may be; provided, however, that if
such Interest Payment Date would not be a Business Day, then
such Interest Payment Date and the first day of the next
succeeding Interest Period will be the next succeeding Business
Day, except that if such Interest Payment Date is in the next
succeeding calendar year, such Interest Payment Date and the
first day of the next succeeding Interest Period will be the
immediately preceding Business Day.
On each Determination Date, the Calculation Agent will
calculate the Interest Rate based on 3-month LIBOR for each
Interest Period commencing on the second London Banking Day
immediately following such Determination Date. "3-Month LIBOR"
shall mean the London interbank offered rate for three-month
Eurodollar deposits determined in the following order of
priority:
(i) the rate (expressed as a percentage per annum)
for Eurodollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of
11:00 am (London time) on the related Determination
Date;
(ii) if such rate does not appear on Telerate Page
3750 as of 11:00 a.m. (London time) on the related
Determination Date, 3-month LIBOR will be the
arithmetic mean of the rates (expressed as
percentages per annum) for Eurodollar deposits
having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time)
on such Determination Date;
(iii) if such rate does not appear on Reuters Page
LIBO as of 11:00 a.m. (London time) on the related
Determination Date, the Calculation Agent will
request the principal London offices of four
leading banks in the London interbank market to
provide such banks' offered quotations
(expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar
deposits having a three-month maturity as of 11:00
a.m. (London time) on such Determination Date. If
at least two quotations are provided, 3-month LIBOR
will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation
Agent will request four major New York City banks
to provide such banks' offered quotations
(expressed as percentages per annum) to leading
European banks for loans in Eurodollars as of 11:00
a.m. (London time) on such Determination Date. If
at least two such quotations are provided, 3-
month LIBOR will be the arithmetic mean of such
quotations; and
(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR
will be 3-month LIBOR determined with respect to the
Interest Period immediately preceding such
current Interest Period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters
Page LIBO, as the case may be, as of 11:00 a.m. (London time) on
the related Determination Date is superseded on Telerate Page
3750 or Reuters Page LIBO, as the case may be, by a corrected
rate before 12:00 noon (London time) on such Determination Date,
the corrected rate as so substituted on the applicable page will
be the applicable 3-month LIBOR for such Determination Date.
2<PAGE>
<PAGE>
As used herein:
"Business Day" means any day which is not a Saturday or
Sunday, or a day on which banking institutions in The City of
New York or Wilmington, Delaware 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.
"Calculation Agent" means Wilmington Trust Company.
"Determination Date" means the date two London Banking
Days preceding the first day of any Interest Period.
"London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market.
"Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as
may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers'
Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar
deposits).
The Interest Rate for any Interest Period will at no time
be higher than the maximum rate then permitted by New York law
as the same may be modified by federal law.
All percentages resulting from any calculations on the
Securities shall be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
The Calculation Agent, shall as soon as practicable after
11:00 a.m. (London time) on each Determination Date, determine
the Interest Rate and inform the Debenture Trustee and the
Paying Agent and, if any Securities are held by the Property
Trustee, the Property Trustee. Unless otherwise provided by the
Debenture Trustee, the Paying Agent will calculate the amount of
interest payable on the Securities in respect of the following
Interest Period. The amount of interest payable for any
Interest Period will be computed on the basis of the actual
number of days in the applicable Interest Period divided by 360
and rounding the resulting figure to the nearest cent (with one-
half cent or more being rounded upwards). The determination of
the Interest Rate by the Calculation Agent and the amount of
interest payable by Paying Agent will (in the absence of wilful
misconduct, bad faith or manifest error) be final, conclusive
and binding on all concerned.
In addition, so long as no Event of Default with respect
to the Securities has occurred or is continuing, the Company has
the right under the Indenture at any time during the term of
such Securities to defer the payment of interest at any time or
from time to time for a period not exceeding 20 consecutive
quarterly periods with respect to each Extension Period,
provided that no Extension Period may extend beyond the Stated
Maturity. At the end of such Extension Period, the Company must
pay all interest then accrued and unpaid (together with interest
thereon at the then applicable interest rate, compounded
quarterly from the relevant Interest Payment Date, to the extent
permitted by applicable law).
E. Principal of (and premium, if any) and interest on the
Securities will be payable, and, except as provided in Section
3.5 of the Indenture with respect to a Global Security (as
defined below), the transfer of the Securities will be
registrable and Securities (except as provided in paragraph (Q)
hereof) will be exchangeable for Securities bearing identical
terms and provisions at the corporate trust office of Wilmington
Trust Company in the City of Wilmington, Delaware.
<PAGE>
F. The Securities will be redeemable in whole at any time
and in part from time to time, at the option of the Company at
any time on or after December 1, 2003, subject to the Company
having received prior regulatory
3<PAGE>
<PAGE>
approval if then so required, at a redemption price equal to the
accrued and unpaid interest on the Securities so redeemed to the
date fixed for redemption, plus 100% of the principal amount
thereof.
In addition, upon the occurrence of a Tax Event, an
Investment Company Event or a Capital Treatment Event (as each
such term is defined below) the Company may, at its option and
subject to receipt of prior regulatory approval if then so
required, prepay the Securities in whole (but not in part) at
any time within 90 days of the occurrence of such Tax Event,
Investment Company Event or a Capital Treatment Event, at a
redemption price equal to the accrued and unpaid interest on the
Securities so redeemed to the date fixed for redemption, plus
100% of the principal amount thereof.
"Tax Event" means the receipt by the Company and the Trust
of an opinion of, its tax advisors (which may be its independent
public accountants or 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
prospective change, pronouncement or decision is announced on or
after the date of issuance of the Preferred Securities of such
Trust, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to
income received or accrued on the corresponding series of
Securities, (ii) interest payable by the Company on such
corresponding series of Securities is not, or within 90 days of
the date of such option, will not be, deductible by the Company,
in whole or in part, for United States federal income tax
purposes or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"Investment Company Event" means, in respect of the Trust,
the receipt by the Trust of an Opinion of Counsel, rendered by a
law firm experienced in such matters, to the effect that, as a
result of change in law or regulation or a change in
interpretation or application of law or regulatory authority,
the Trust 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 of the Trust.
"Capital Treatment Event" means the reasonable
determination by the Company that, as a result of any amendment
to , or change (including any 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 or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations,
which amendment or change is effective or such prospective
change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities of the Trust, there
is more than an insubstantial risk of impairment of the
Company's ability to treat an amount equal to the Liquidation
Amount of the Preferred Securities (or a substantial portion
thereof) as "Tier I 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.
G. The Company shall not be obligated to redeem or
purchase any Securities pursuant to any sinking fund or
analogous provisions or at the option of the Holder.
H. The Securities will be issued only in fully registered
form and the authorized minimum denomination of the Securities
shall be $1,000 and any integral multiple of $1,000 in excess
thereof.
I. The Securities shall be denominated, and payments of
principal of (and premium, if any) and interest on the
Securities of such series will be made, in United States
dollars.
J. The Securities shall be subject to the Events of
Default specified in Section 5.1, paragraphs (1) through (5), of
the Indenture.
4<PAGE>
<PAGE>
K. The portion of the principal amount of the Securities
which shall be payable upon declaration of acceleration of
maturity thereof shall not be other than the principal amount
thereof, provided, that, if such acceleration is declared by the
Holders of at least 25% in aggregate liquidation amount of the
Preferred Securities then outstanding, then, upon such
declaration of acceleration, the Securities which shall be
payable shall be the principal amount thereof plus accrued
interest (including any Additional Interest).
L. The Securities will be issued in fully registered
form, without coupons. The Securities will not be issued in
bearer form.
M. The amount of payments of principal of and any premium
or interest on the Securities will not be determined with
reference to an index.
N. The Securities shall not be issued in the form of a
temporary Global Security (as defined below).
O. The Securities will initially be in certificated form
registered in the name of the name of Wilmington Trust Company,
as Property Trustee for the Trust (the "Certificated
Securities"). The Securities may, in the sole discretion of the
Company, be deposited with, and on behalf of, The Depository
Trust Company, New York, New York, as Depositary, and will be
represented by a global security (a "Global Security")
registered in the name of a nominee of the Depositary. If, and
so long as the Depositary or its nominee is the registered
holder of any Global Security, the Depositary or its nominee, as
the case may be, will be considered the sole Holder of the
Securities of such series represented by such Global Security
for all purposes under the Indenture and the Securities. The
Certificated Securities or the Global Securities, as the case
may be, shall bear no legends.
P. The Trustee shall be Paying Agent.
Q. The Securities will not be convertible into any other
securities or property of the Company. The Securities of any
series may not be exchanged for Securities of any other series.
R. The Trust Agreement, the Amended and Restated Trust
Agreement and the Guarantee Agreement are in the forms attached
hereto as Exhibits A, B, and C respectively.
S. The Securities are subordinate and subject in right of
payment to the prior payment in full of all amounts then due and
payable in respect of all Senior and Subordinated Debt, as
provided in the Indenture.
T. The Securities shall have additional terms, which
terms shall not be inconsistent with the provisions of the
Indenture.
II. ESTABLISHMENT OF FORMS OF SECURITIES PURSUANT TO
SECTION 2.1 OF INDENTURE
It is hereby established pursuant to Section 2.1 of the
Indenture that the Securities shall be substantially in the form
attached as Exhibit D hereto.
III. ORDER FOR THE AUTHENTICATION AND DELIVERY
OF SECURITIES PURSUANT TO SECTION 3.3 OF
THE INDENTURE
It is hereby ordered pursuant to Section 3.3 of the
Indenture that the Trustee authenticate, in the manner provided
by the Indenture, Securities in the aggregate principal amount
of $51,547,000 registered in the name of Wilmington Trust
Company, as Property Trustee, which Securities have been
heretofore duly executed by the proper officers of the Company
and delivered to you as provided in the Indenture, and to
deliver said authenticated Securities to Wilmington Trust
Company or its custodian on or before 9:00 a.m., Eastern Time,
on November 20, 1998.
5<PAGE>
<PAGE>
IV. OTHER MATTERS.
Attached as Exhibit E hereto are true and correct copies
of resolutions adopted by the Pricing Committee of the Board of
Directors of the Company on November 17, 1998. Attached as
Exhibit F hereto are true and correct copies of resolutions
adopted by the Board of Directors of the Company at meetings on
March 26, 1998 and October 22, 1998. Such resolutions have not
been further amended, modified or rescinded and remain in full
force and effect; and such resolutions (together with this
Officers' Certificate) are the only resolutions or other action
adopted by the Company's Board of Directors or any committee
thereof or by any Authorized Officers relating to the offering
and sale of the Securities.
The undersigned have read the pertinent sections of the
Indenture including the related definitions contained therein.
The undersigned have examined the resolutions adopted by the
Board of Directors and the Pricing Committee of the Board of
Directors of the Company. In the opinion of the undersigned,
the undersigned have made such examination or investigation as
is necessary to enable the undersigned to express an informed
opinion as to whether or not the conditions precedent to the
establishment of (i) a series of Securities, (ii) the forms of
such Securities and (iii) authentication of such series of
Securities, contained in the Indenture have been complied with.
In the opinion of the undersigned, such conditions have been
complied with.
6<PAGE>
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Certificate this 20th day of November, 1998.
WSFS FINANCIAL CORPORATION
By:/s/ Marvin N. Schoenhals
__________________________
Marvin N. Schoenhals
President
By:/s/ Mark A. Turner
__________________________
Mark A. Turner
Secretary
7
<PAGE>
__________________________________________________
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
Between
WSFS FINANCIAL CORPORATION
(as Guarantor)
and
WILMINGTON TRUST COMPANY
(as Trustee)
dated as of
November 20, 1998
__________________________________________________
<PAGE>
<PAGE>
CROSS-REFERENCE TABLE*
Section of Trust Section of
Indenture Act of 1939, as amended Guarantee Agreement
- ----------------------------------- --------------------
310(a). 4.1(a)
310(b). 4.1(c), 2.8
310(c). Inapplicable
311(a). 2.2(b)
311(b). 2.2(b)
311(c). Inapplicable
312(a). 2.2(a)
312(b). 2.2(b)
313. 2.3
314(a). 2.4
314(b). Inapplicable
314(c). 2.5
314(d). Inapplicable
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
316(c). 9.2
317(a). Inapplicable
317(b). Inapplicable
318(a). 2.1(b)
318(b). 2.1
318(c). 2.1(a)
- ----------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the
interpretation of any of its terms or provisions.
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . 1
ARTICLE II. TRUST INDENTURE ACT . . . . . . . . . . . . . 3
Section 2.1. Trust Indenture Act; Application . . . 3
Section 2.2. List of Holders. . . . . . . . . . . . 3
Section 2.3. Reports by the Guarantee Trustee . . . 4
Section 2.4. Periodic Reports to Guarantee Trustee. 4
Section 2.5. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . 4
Section 2.6. Events of Default; Waiver. . . . . . . 4
Section 2.7. Event of Default; Notice . . . . . . . 4
Section 2.8. Conflicting Interests . . . . . . . . .4
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE. . . . . . . . . . . . . . . . . . . 5
Section 3.1. Powers and Duties of the Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Certain Rights of Guarantee Trustee. . 6
Section 3.3. Indemnity. . . . . . . . . . . . . . . 7
ARTICLE IV. GUARANTEE TRUSTEE . . . . . . . . . . . . . . 7
Section 4.1. Guarantee Trustee; Eligibility . . . . 7
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee .. . . . . . . . 7
ARTICLE V. GUARANTEE . . . . . . . . . . . . . . . . . . . 8
Section 5.1. Guarantee. . . . . . . . . . . . . . . 8
Section 5.2. Waiver of Notice and Demand. . . . . . 8
Section 5.3. Obligations Not Affected . . . . . . . 8
Section 5.4. Rights of Holders. . . . . . . . . . . 9
Section 5.5. Guarantee of Payment . . . . . . . . . 9
Section 5.6. Subrogation. . . . . . . . . . . . . . 9
Section 5.7. Independent Obligations. . . . . . . . 9
ARTICLE VI. SUBORDINATION AND COVENANTS. . . . . . . . . 10
Section 6.1. Subordination . . . . . . . . . . . . 10
Section 6.2. Pari Passu Guarantees . . . . . . . . 10
Section 6.3 Covenants of the Guarantor . . . . . . 10
ARTICLE VII. CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER
TRANSACTIONS . . . . . . . . . . . . . . . .11
Section 7.1. Guarantor May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . 11
Section 7.2. Successor Guarantor Substituted . . . 11
ARTICLE VIII. TERMINATION. . . . . . . . . . . . . . . . . 12
Section 8.1. Termination . . . . . . . . . . . . . 12
ARTICLE IX. MISCELLANEOUS. . . . . . . . . . . . . . . . 12
Section 9.1. Successors and Assigns. . . . . . . . 12
Section 9.2. Amendments. . . . . . . . . . . . . . 12
Section 9.3. Notices . . . . . . . . . . . . . . . 12
Section 9.4. Benefit . . . . . . . . . . . . . . . 13
Section 9.5. Interpretation. . . . . . . . . . . . 13
Section 9.6. Governing Law . . . . . . . . . . . . 14<PAGE>
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the
"Guarantee Agreement"), dated as of November 20, 1998, is
executed and delivered by WSFS FINANCIAL CORPORATION, a Delaware
corporation (the "Guarantor") having its principal office at 838
Market Street, Wilmington, Delaware 19899, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as
defined herein) of WSFS Capital Trust I, a Delaware statutory
business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement, dated as of November 20, 1998 (the "Trust
Agreement"), among the Guarantor, as Depositor, Wilmington Trust
Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein and
the Holders from time to time of undivided beneficial interests
in the assets of the Trust, the Trust issued $50,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement)
of its Floating Rate Cumulative Trust Preferred Securities,
Liquidation Amount $1,000 per Preferred Security (the "Trust
Preferred Securities"), representing preferred undivided
beneficial interests in the assets of the Trust and having the
terms set forth in the Trust
Agreement;
WHEREAS, the Trust Preferred Securities will be issued by
the Trust and the proceeds thereof, together with the proceeds
from the issuance of the Trust's Common Securities (as defined
below), will be used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor which will be deposited
with Wilmington Trust Company, as Property Trustee under the
Trust Agreement, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the
Trust Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to
pay to the Holders of the Trust 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 Trust Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement and,
pursuant to Section 5.1 hereof, extends the Guarantee for the
benefit of the Holders from time to time of the Trust Preferred
Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used
but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement and the Indenture
(as defined herein), each as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person;
provided, however, that an Affiliate of the Guarantor shall not
be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors
of the Guarantor or any committee of that board duly authorized
to act hereunder.
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"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Trust.
"Common Stock" shall mean the common stock of the
Guarantor, par value of .01 per share, of the Company.
"Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee
Agreement; provided, however, that, except with respect to a
default in payment of any Guarantee Payments, the Guarantor
shall have received written notice of default and shall not have
cured such default within 60 days after receipt of such notice.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust
Preferred Securities, to the extent not paid or made by or on
behalf of the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be
paid on the Trust Preferred Securities, to the extent the Trust
shall have funds on hand available therefor at such time, (ii)
the applicable Redemption Price (as defined in the Trust
Agreement with respect to the Trust Preferred Securities called
for redemption by the Trust), to the extent the Trust shall have
funds on hand available therefor at such time, and (iii) upon a
voluntary or involuntary termination, winding up or liquidation
of the Trust, unless Debentures are distributed to the Holders,
the lesser of (a) the aggregate of the Liquidation Distribution
(as defined in the Trust Agreement) and (b) the amount of assets
of the Trust remaining available for distribution to Holders of
Trust Preferred Securities after satisfaction of liabilities to
creditors of the Trust as required by applicable law.
"Guarantee Trustee" means Wilmington Trust Company, until
a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this
Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities;
provided, however, that in determining whether the holders of
the requisite percentage of Trust Preferred Securities have
given any request, notice, consent or waiver hereunder.
"Holder" shall not include the Guarantor, the Guarantee Trustee,
or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated
as of November 20, 1998, as supplemented and amended between the
Guarantor and Wilmington Trust Company, as trustee.
"List of Holders" has the meaning specified in Section
2.2(a).
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture
Act, a vote by the Holder(s), voting separately as a class, of
more than 50% of the Liquidation Amount of all then outstanding
Trust Preferred Securities issued by the Trust.
"Officers' Certificate" means, with respect to any Person,
a certificate signed by (i) the Chairman or a Vice Chairman of
the Board of Directors of such Person or the Chief Executive
Officer, President or a Vice President of such Person, and by
(ii) the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each such 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;
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(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 officer, such condition or covenant
has been complied with.
"Other Guarantees" means any guarantees similar to the
Guarantee issued, from time to time, by the Guarantor on behalf
of holders of one or more series of Trust Preferred Securities
issued by one or more WSFS Trusts (as defined in the Indenture)
other than the Trust.
"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.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer of the Corporate Trust Department of the
Guarantee Trustee and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity
with the particular subject.
"Securities Act" means the Securities Act of 1933, as
amended.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as 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 Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be
part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished
to the Guarantee Trustee a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") (a) as of the record date for
the payment of Distributions (as defined in the Trust Agreement)
not more than 15 days after such record date, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the
Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of
a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section
312(b) of the Trust Indenture Act.
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SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE.
Not later than December 31 of each year, commencing
December 31, 1998, the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such
documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act,
in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee, on
an annual basis, such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
may be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
therefrom.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided,
that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of this Guarantee Agreement
shall have obtained written notice, of such Event of Default.
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
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ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except
to a Holder exercising his or her rights pursuant to Section
5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of
the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as
are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act
are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements of
this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction
of the Holders of not less than a Majority in Liquidation
Amount of the Trust Preferred Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
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(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee Agreement
or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, proxy, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the
administration of this Guarantee Agreement from any court
of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such adequate security
and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(v)
shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee
Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see
fit.
(vii) The Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents or
attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by
it hereunder.
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(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation
Amount of the Trust Preferred Securities, (B) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall
be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. INDEMNITY.
The Guarantor agrees to indemnify each of the Guarantee
Trustee and any predecessor Guarantee Trustee for, and to hold
it harmless against, any and all loss, damage, claim, liability
or expense incurred without negligence or bad faith on the part
of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement,
including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Guarantor, a Holder
or any other Person), 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 3.3 shall survive the termination of this Guarantee
Agreement or the earlier resignation or removal of the Guarantee
Trustee.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE: ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and shall be
a corporation meeting the requirements of Section 310(a)
of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining
authority, then, for the purposes of this Section
4.1(a)(ii) and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
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(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery to the Guarantor of an
instrument of resignation, the Guarantee Trustee resigning or
being removed may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to
pay in full on a subordinated basis to the Holders the Guarantee
Payments (without duplication of amounts theretofore paid by or
on behalf of the Trust), as and when due, regardless of any
defense, right of set-off or counterclaim which the Trust may
have or assert other than the defense of payment (the
"Guarantee"). 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 such Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of the
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 Guarantee Trustee, Trust or any
other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of any
express or implied agreement, covenant, term or condition
relating to the Trust 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 (other than an
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Debentures
as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Trust Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Trust Preferred Securities;
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(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 Trust 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
Trust Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense
of a guarantor, it being the intent of this Section 5.3 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 or the Guarantee
Trustee to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount
of the Trust Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Trust or any other
Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment
and not of collection. The obligations under this Guarantee
Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts
theretofore paid by the Trust) or upon distribution of
Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights
of the Holders against the Trust in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement
and shall have the right to waive payment by the Trust pursuant
to Section 5.1; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law)
be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the
Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Trust with respect to
the Trust Preferred Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to
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make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI. SUBORDINATION AND COVENANTS
SECTION 6.1. SUBORDINATION.
The obligations of the Guarantor under this Guarantee will
constitute unsecured obligations of the Guarantor and will rank
subordinate and junior in right of payment to all Senior and
Subordinated Debt (as defined in the Indenture) in the same
manner as Debentures (as defined in the Trust Agreement).
SECTION 6.2. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee
shall rank pari passu with the obligations of the Guarantor
under all Other Guarantees.
SECTION 6.3 COVENANTS OF THE GUARANTOR
(1) Guarantor covenants and agrees that if and so long as
(i) the Trust is the holder of all the Junior Subordinated
Debentures, (ii) a Tax Event (as defined in the Trust Agreement)
in respect of the Issuer has occurred and is continuing and
(iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Trust
Agreement) in respect of the Trust Preferred Securities and
Common Securities, the Guarantor, subject to Sections 6.1 and
6.2, will pay to the Trust such Additional Sums.
(2) The Guarantor covenants and agrees with each Holder of
any series that it shall not, and it shall not permit any
Subsidiary (as defined in the Indenture) of the Guarantor to,
(a) declare or pay any dividends or distributions on, or redeem
purchase, acquire or make a liquidation payment with respect to,
any shares of the Guarantor capital stock (which includes common
and preferred stock), or (b) make any payment or principal of or
interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Guarantor (including securities other
than the securities of such series) that rank pari passu in all
respects with or junior in interest to the securities of such
series or make any guarantee payments with respect to any
guarantee by the Guarantor of debt securities of any subsidiary
of the Company if such guarantee ranks pari passu in all
respects with or junior in interest to the securities (other
than (a) dividends or distributions in capital stock of the
Guarantor (which includes common and preferred stock), (b) any
declaration of a dividend in connection with the implementation
of a Rights Plan (as identified in the Indenture), the issuance
of any rights, or any Common Stock of any class or series of
preferred stock of the Guarantor under Rights Plan or the
redemption or repurchase of any such rights as defined in the
Indenture pursuant thereto, (c) payments under the WSFS
Guarantee (as defined in the Indenture) related to the Trust
Preferred Securities issued by the WSFS Trust (as defined in the
Indenture) holding securities of such series, and (d) purchases
of common stock related to the issuance of Common Stock or
rights under any of the Guarantor benefit plans for its
directors, officers or employees or related to the issuance of
Common Stock (or securities convertible into or exchangeable for
common stock) if at such time (i) there shall have occurred any
event of which the Guarantor has actual knowledge that (A) with
the giving of notice or the lapse of time or both, would
constitute an Event of Default with respect to the securities of
such series and (B) in respect of which the Guarantor shall not
have taken reasonable steps to cure (ii) if the securities of
such series are held by a WSFS Trust, the Guarantor shall be in
default with respect to its payment of any obligation under the
WSFS Guarantee relating to the Trust Preferred Securities issued
by such WSFS Trust or (iii) the Guarantor shall have given
notice of its election to begin an Extension Period (as defined
in the Indenture) with respect to the securities of such series
as provided herein and shall not have rescinded such notice, or
such Extension Period, or any extension thereof, shall be
continuing.
(3) The Company also covenants with each Holder of a
series issued to a WSFS Trust (i) to maintain directly or
indirectly 100% ownership of the Common Securities of such WSFS
Trust; provided, however, that any
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permitted successor of the Guarantor hereunder may succeed to
the Guarantor's ownership of such Common Securities, (ii) not
to voluntarily terminate, wind-up or liquidate such WSFS Trust,
except (a) in connection with a distribution of the securities
of such series to the holders of Trust Preferred Securities in
liquidation of such WSFS Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the
related Trust Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of such Trust
Agreement, to cause such WSFS Trust to remain classified as a
grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.
ARTICLE VII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 7.1. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Guarantor shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person
shall consolidate with or merge into the Guarantor or convey,
transfer or lease its properties and assets substantially as an
entirety to the Guarantor, unless:
(1) in case the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Guarantor substantially as an entirety shall be a
corporation, partnership or trust organized and existing under
the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume the Guarantor's
obligations under this Guarantee;
(2) immediately after giving effect thereto, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and
be continuing;
(3) such consolidation, merger, conveyance, transfer or
lease is permitted under the Trust Agreement and the Indenture
and does not give rise to any breach or violation of the Trust
Agreement or the Indenture; and
(4) the Guarantor has delivered to the Guarantee Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and assumption of the Guarantor's obligations under this
Guarantee Agreement comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with; and the Guarantee Trustee,
subject to Section 3.1 hereof, may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that
such transaction complies with this Section 7.1.
SECTION 7.2. SUCCESSOR GUARANTOR SUBSTITUTED.
Upon any consolidation or merger by the Guarantor with or
into any other Person, or any conveyance, transfer or lease by
the Guarantor of its properties and assets substantially as an
entirety to any Person in accordance with Section 7.1, the
successor Person formed by such consolidation or into which the
Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this
Guarantee Agreement with the same effect as if such successor
Person had been named as the Guarantor herein; and in the event
of any such conveyance, transfer or lease the Guarantor shall be
discharged from all obligations and covenants under this
Guarantee Agreement.
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ARTICLE VIII. TERMINATION
Section 8.1. Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon the earliest of (i) full payment
of the applicable Redemption Price of all Trust Preferred
Securities, (ii) the distribution of Debentures to the Holders
in exchange for all of the Trust Preferred Securities or (iii)
full payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Trust. Notwithstanding the
foregoing clauses (i) through (iii), this Guarantee Agreement
will continue to be effective or will be reinstated if it has
been terminated pursuant to one of such clauses (i) through
(iii), as the case may be, if at any time any Holder must
restore payment of any sums paid with respect to Trust Preferred
Securities or this Guarantee Agreement.
ARTICLE IX. MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders of the Trust Preferred Securities
then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor that is permitted under
Article VII hereof and Article VIII of the Indenture, the
Guarantor shall not assign its obligations hereunder.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in
which case no consent will be required), this Guarantee
Agreement may not be amended without the prior approval of the
Holders of not less than a Majority in Liquidation Amount of the
Trust Preferred Securities. The provisions of Article VI of the
Trust Agreement concerning meetings of the Holders shall apply
to the giving of such approval.
SECTION 9.3. NOTICES.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed
by the party giving such notice, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth
below or such other address, facsimile number or to the
attention of such other Person as the Guarantor may give notice
to the Holders:
WSFS Financial Corporation
838 Market Street
Wilmington, Delaware 19899
Facsimile No.: (302) 571-6842
Attention: Mark A. Turner
Senior Vice President
(b) if given to the Trust, in care of the Guarantee
Trustee, at the Trust's (and the Guarantee Trustee's) address
set forth below or such other address as the Guarantee Trustee
on behalf of the Trust may give notice to the Holders:
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WSFS Capital Trust I
c/o WSFS Financial Corporation
838 Market Street
Wilmington, Delaware 19899
Facsimile No.: (302) 571-6842
Attention: Mark A. Turner
Senior Vice President
with a copy to:
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Department
(c) if given to any Holder, at the address set forth on
the books and records of the Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to
deliver.
SECTION 9.4. BENEFIT.
This Guarantee is solely for the benefit of the Holders
and is not separately transferable from the Trust Preferred
Securities.
SECTION 9.5. INTERPRETATION.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as
modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders.
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SECTION 9.6. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
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This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
WSFS FINANCIAL CORPORATION
By: /s/ Marvin N. Schoenhals
___________________________
Name: Marvin N. Schoenhals
Title: Chairman and President
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ David A. Vanaskey
___________________________
Name: David A. Vanaskey
Title: Assistant Vice President
<PAGE>
WSFS FINANCIAL CORPORATION
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE DUE DECEMBER 1, 2028
Registered No. _________ Principal Amount: $__________
CUSIP No.: 929328 AC 6
WSFS Financial Corporation, a corporation organized and
existing under the laws of Delaware (hereinafter called the
"Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________________________, or
registered assigns, the principal sum of _________________ and
00/100 Dollars on December 1, 2028; provided that the Company
may shorten the Stated Maturity of the principal of this
Security to a date not earlier than December 1, 2003. The
Company further promises to pay interest on said principal sum
from or from the most recent interest payment date (each such
date, an "Interest Payment Date") on which interest has been
paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on the last day of March, June,
September and December of each year commencing March 1, 1999 at
a rate per annum reset quarterly equal to 3-month LIBOR (as
defined in the Indenture hereinafter referred to) plus 250 basis
points (the "Interest Rate"), until the principal hereof shall
have become due and payable, plus Additional Interest, if any,
until the principal hereof is paid or duly provided for or made
available for payment and on any overdue principal and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the Interest Rate, compounded quarterly. 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 partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve
30-day months. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment
of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day is in the next calendar year, such payment
shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any
day other than a Saturday or Sunday, a day on which banking
institutions in The City of New York or Wilmington, Delaware are
authorized or required by law or executive order to remain
closed or on a day on which the Corporate Trust Office of the
Trustee, or the principal office of the Property Trustee under
the Trust Agreement (hereinafter referred to) for WSFS Capital
Trust I is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest installment, which
shall be the Business Day next preceding such Interest Payment
Date. Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than ten
days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said
Indenture.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right at any time during
the term of this Security to defer payment of interest on this
Security, at any time or from time to time, for up to 20
consecutive quarterly interest payment periods with respect to
each deferral period (each an "Extension Period"), (during which
Extension Periods the Company shall have the right to make
partial payments of interest on any Interest Payment Date, and
at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law)); provided, however,
that no Extension Period shall extend beyond the Stated Maturity
of the principal of this Security; provided, further, that
during any such Extension Period, the Company shall not, and
shall not permit any Subsidiary of the Company to, (i) declare
or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred
stock), or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt
security of the Company (including Securities issued by the
Company pursuant to the Indenture other than the Securities
represented by this certificate) that ranks pari passu
with or junior in interest to this Security, or (iii) make any
guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiaries of the Company (if
such guarantee ranks pari passu in all respects with or junior
in interest to this Security (other than (a) dividends or
distributions in capital stock of the Company (which includes
common and preferred stock), (b) any declaration of a dividend
in connection with the implementation of a Rights Plan, or the
issuance of any Common Stock or any class or series of preferred
stock of the Company under any Rights Plan in the future
or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the WSFS Guarantee related to the
Preferred Securities issued by WSFS Capital Trust I and (d)
purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees). Prior to the
termination of any such Extension Period, the Company may
further extend such Extension Period, provided that such
extension does not cause such Extension Period to exceed 20
consecutive interest payment periods or to extend beyond the
Stated Maturity. Upon the termination of any such Extension
Period and upon the payment of all amounts then due, and subject
to the foregoing limitation, the Company may elect to begin a
new Extension Period. No interest shall be due and payable
during an Extension Period except at the end thereof. The
Company shall give the Trustee, the Property Trustee and the
Administrative Trustees of WSFS Capital Trust I notice
of its election to begin any Extension Period at least one
Business Day prior to the earlier of (i) the date on which
Distributions on the Preferred Securities would be payable
except for the election to begin such Extension Period, or (ii)
the date the Administrative Trustees are required to give notice
to the Nasdaq National Market or other applicable stock exchange
or automated quotation system on which the Preferred Securities
are then listed or quoted or to holders of such Preferred
Securities of the record date or (iii) the date such
Distributions are payable, but in any event not less than one
Business Day prior to such record date. The Trustee shall give
notice of the Company's election to begin a new Extension Period
to the holders of the junior Subordinated Debentures. There is
no limitation on the number of times that the Company may elect
to begin an Extension Period.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency
of the Trustee or at the office of such paying agent or paying
agents as the Company may designate from time to time,
maintained for that purpose in the United States, in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto, in immediately
available funds, at such place and to such account as may be
designated by the Person entitled thereto as specified in the
Securities Register.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, unsecured and will rank junior
and subordinate and subject in right of payments to the prior
payment in full of all Senior and Subordinated Debt, and this
Security is issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf
to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior and
Subordinated Debt whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated: ______________________
TRUSTEES'S CERTIFICATE OF WSFS FINANCIAL CORPORATION
AUTHENTICATION
This is one of the Securities
referred to in the within-
mentioned Indenture.
By:_________________________
President
Wilmington Trust Company as Attest:
Trustee
____________________________
Secretary or Assistant
Secretary
By: ___________________________
Authorized Officer
Date of Authentication: ________<PAGE>
<PAGE>
WSFS FINANCIAL CORPORATION
FLOATING RULE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE DECEMBER 1, 2028
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under a Junior
Subordinated Indenture, dated as of November 20, 1998
(herein called the "Indenture"), between the Company and
Wilmington Trust Company, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in
aggregate principal amount to $51,547,000.
All terms used in this Security that are defined in the
Indenture and in the Trust Agreement, dated as of November 20,
1998, as amended (the "Trust Agreement"), for WSFS Capital Trust
I among WSFS Financial Corporation, as Depositor, and the
Trustees named therein, shall have the meanings assigned to
them in the Indenture or the Trust Agreement, as the case may
be.
The Company may at any time, at its option, on or after
December 1, 2003, and subject to the terms and conditions of
Article XI of the Indenture, and subject to the Company having
received any required regulatory approval, redeem this Security
in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to 100% of the
principal amount of this Security plus any accrued and unpaid
interest thereon to the Redemption Date.
Upon the occurrence and during the continuation of a Tax
Event, Investment Company Event or Capital Treatment Event in
respect of a WSFS Trust, the Company may, at its option, at any
time within 90 days of the occurrence of such Tax Event,
Investment Company Act or Capital Treatment Event redeem this
Security, in whole but not in part, subject to the provisions of
Section 11.7 and the other provisions of Article XI of the
Indenture, at a redemption price equal to 100% of the principal
amount of this Security, plus any accrued and unpaid interest
thereon to the Redemption Date.
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the portion hereof
not redeemed will be issued in the name of the Holder hereof
upon the cancellation hereof.
The Indenture contains provisions for satisfaction and
discharge of the entire indebtedness of this Security upon
compliance by the Company with certain conditions set forth in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into
a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series to be
affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of
transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Security.
As provided in and subject to the provisions of the
Indenture, if an Event of Default with respect to the Securities
of this series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of
all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), provided that, in the case of
the Securities of this series issued to a WSFS Trust, if upon an
Event of Default, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of this
series fails to declare the principal of all the Securities of
this series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest
(including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided
that the payment of principal and interest (including any
Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the
Indenture.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on
this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but
the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Securities of this series are issuable only in
registered form without coupons in denominations of minimum
denominations of $1,000 and any integral multiples of $1,000 in
excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of
Securities of such series of a different authorized
denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that for
United States Federal, state and local tax purposes it is
intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
* * * * * *
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.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF TRANSFER MIN ACT - . . . . . . . . . . . Custodian . . .
(Cust)
.. . . . . . . . . . . . . .under Uniform Transfers to Minors
(Minor)
Act . . . .. . . . . . .. . . . . . . .
(State)
Additional abbreviations may also be used though not in the
above list.
NOTE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME OF THE HOLDER(S) AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
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)
________________________________________________________________
the within Security, and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
______________________________________________ Attorney
to transfer said Security on the books of the Company, with full
power of substitution in the premises.
Dated ____________________ _____________________________
Signature
_____________________________
Signature
