<PAGE>
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1999
------------------------------------------
Commission file number 0-26350
--------------------------------------------------
ALLEGIANT BANCORP, INC.
- ------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
MISSOURI 43-1519382
- --------------------------------- -------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or
organization)
2122 KRATKY ROAD
ST. LOUIS, MISSOURI 63114
- ------------------------------------------------------------------------
(Address of principal executive offices)
(Zip Code)
(314) 692-8200
- ------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. /X/ Yes / / No
Number of shares
Title of class outstanding as of July 30, 1999
- ----------------------------------- -----------------------------------
Common stock, $0.01 par value 6,378,601
<PAGE>
<PAGE>
ALLEGIANT BANCORP, INC.
FORM 10-Q
<TABLE>
INDEX
<CAPTION>
Page
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements 1
Consolidated Balance Sheets - June 30, 1999 and 1998 (Unaudited) and
December 31, 1998 1
Consolidated Statements of Income (Unaudited) - Three Months Ended
June 30, 1999 and 1998, and Six Months Ended June 30, 1999 and 1998 2
Consolidated Statement of Shareholders' Equity (Unaudited) - Six Months
Ended June 30, 1999 3
Consolidated Statements of Cash Flows (Unaudited) - Six Months Ended
June 30, 1999 and 1998 4
Notes to Condensed Consolidated Financial Statements (Unaudited) 5
Item 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations 7
Distribution of Average Assets, Liabilities and Shareholders' Equity and Interest
Rates - Three Months Ended June 30, 1999 and 1998 10
Distribution of Average Assets, Liabilities and Shareholders' Equity and Interest
Rates - Six Months Ended June 30, 1999 and 1998 11
Rate/Volume Analysis - Quarter Ended June 30, 1999 and Six Months Ended
June 30, 1999 12
Securities Portfolio - June 30, 1999 and 1998 and December 31, 1998 15
Lending and Credit Management - June 30, 1999 and 1998 and
December 31, 1998 16
Risk Elements--Nonaccrual, Past Due and Restructured Loans - June 30, 1999
and 1998 and December 31, 1998 17
Summary of Loan Loss Experience and Related Information - Six Months Ended
June 30, 1999 and 1998 19
i
<PAGE>
<PAGE>
Deposit Liability Composition - June 30, 1999 and 1998 and December 31, 1998 20
Liquidity Management and Capital Resources 21
Year 2000 24
Item 3. Quantitative and Qualitative Disclosures about Market Risk 26
PART II - OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds 26
Item 4. Submission of Matters to a Vote of Security Holders 26
Item 6. Exhibits and Reports on Form 8-K 27
SIGNATURES 28
EXHIBIT INDEX 29
</TABLE>
ii
<PAGE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
ALLEGIANT BANCORP, INC.
CONSOLIDATED BALANCE SHEETS
<CAPTION>
June 30, June 30,
1999 December 31, 1998
(Unaudited) 1998 (Unaudited)
----------- ------------ -----------
(Dollars in thousands, except per share data)
<S> <C> <C> <C>
ASSETS:
- -------
Cash and due from banks $ 11,012 $ 13,693 $ 15,340
Federal funds sold and other overnight investments 4 3,430 5,315
Investment securities:
Available-for-sale (at estimated market value) 46,264 42,740 58,297
Held-to-maturity (estimated market value of
$10,349, $12,132 and $19,711, respectively) 10,310 12,040 19,597
Loans, net of allowance for possible loan losses of
$7,085, $6,442 and $5,633, respectively 536,542 489,227 478,011
Bank premises and equipment, net of accumulated
depreciation 10,707 11,010 11,229
Accrued interest and other assets 11,127 11,438 13,281
Cost in excess of fair value of net assets acquired 12,200 12,696 13,249
-------- -------- --------
Total assets $638,166 $596,274 $614,319
======== ======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY:
- -------------------------------------
Deposits:
Non-interest bearing $ 49,997 $ 55,417 $ 48,685
Interest bearing 406,587 364,176 396,233
Certificates of deposit of $100,000 or more 33,232 31,173 38,630
-------- -------- --------
Total deposits 489,816 450,766 483,548
-------- -------- --------
Short-term borrowings 58,664 53,542 40,890
Long-term borrowings 37,275 40,275 40,775
Accrued expenses and other liabilities 2,460 3,587 5,066
-------- -------- --------
Total liabilities 588,215 548,170 570,279
-------- -------- --------
Shareholders' equity:
Common Stock, $0.01 par value - shares
authorized, 20,000,000; shares issued, 6,611,160
6,536,164 and 6,220,800, respectively 66 65 52
Capital surplus 42,324 41,898 40,070
Retained earnings 8,064 6,058 3,860
Accumulated other comprehensive income (503) 83 58
-------- -------- --------
Total shareholders' equity 49,951 48,104 44,040
-------- -------- --------
Total liabilities and shareholders' equity $638,166 $596,274 $614,319
======== ======== ========
See Notes to Condensed Consolidated Financial Statements
</TABLE>
1
<PAGE>
<PAGE>
<TABLE>
ALLEGIANT BANCORP, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------------- -------------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
(In thousands, except share and per share data)
<S> <C> <C> <C> <C>
Interest income:
Interest and fees on loans $ 11,470 $ 11,177 $ 22,543 $ 22,319
Investment securities 815 969 1,588 2,055
Federal funds sold and overnight investments 23 142 102 184
---------- ---------- ---------- ----------
Total interest income 12,308 12,288 24,233 24,558
---------- ---------- ---------- ----------
Interest expense:
Interest on deposits 4,938 5,643 9,794 11,261
Interest on short-term borrowings 647 693 1,286 1,257
Interest on long-term debt 565 716 1,158 1,375
---------- ---------- ---------- ----------
Total interest expense 6,150 7,052 12,238 13,893
---------- ---------- ---------- ----------
Net interest income 6,158 5,236 11,995 10,665
Provision for loan losses 450 315 1,012 715
---------- ---------- ---------- ----------
Net interest income after provision
for loan losses 5,708 4,921 10,983 9,950
---------- ---------- ---------- ----------
Other income:
Service charges and other fees 1,188 2,130 2,442 3,227
Net gain on sale of securities - 46 - 58
---------- ---------- ---------- ----------
Total other income 1,188 2,176 2,442 3,285
---------- ---------- ---------- ----------
Other expenses:
Salaries and employee benefits 2,401 2,261 4,846 4,575
Occupancy and other operating expenses 2,253 3,034 4,666 5,838
---------- ---------- ---------- ----------
Total other expenses 4,654 5,295 9,512 10,413
---------- ---------- ---------- ----------
Income before income taxes 2,242 1,802 3,913 2,822
Provision for income taxes 897 725 1,566 1,118
---------- ---------- ---------- ----------
Net income $ 1,345 $ 1,077 $ 2,347 $ 1,704
========== ========== ========== ==========
Per share data:
Basic:
Weighted average basic
common shares outstanding 6,581,451 6,201,733 6,566,643 6,164,965
Net income $ 0.20 $ 0.17 $ 0.36 $ 0.28
Diluted:
Weighted average diluted
common shares outstanding 6,625,764 6,715,003 6,653,125 6,673,715
Net income $ 0.20 $ 0.16 $ 0.35 $ 0.26
See Notes to Condensed Consolidated Financial Statements
</TABLE>
2
<PAGE>
<PAGE>
<TABLE>
ALLEGIANT BANCORP, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (UNAUDITED)
<CAPTION>
Accumulated Total
Other Share-
Common Capital Retained Comprehensive holders' Comprehensive
Stock Surplus Earnings Income Equity Income
------ ------- -------- ------------- -------- -------------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance December 31, 1998 $65 $41,898 $6,058 $ 83 $48,104
Net income - - 2,347 - 2,347 $2,347
Unrealized losses on available-for-sale
securities, net of reclassification
adjustment (see below) - - - (586) (586) (586)
------
Comprehensive income - - - - - $1,761
======
Stock dividend - - - - -
Warrants exercised 1 281 - - 282
New shares issued - 52 - - 52
Options exercised - 83 - - 83
Dividends - - (331) - (331)
--- ------- ------ ----- -------
Balance June 30, 1999 $66 $42,314 $8,074 $(503) $49,951
=== ======= ====== ===== =======
Reclassification adjustments:
Unrealized gains (losses) on
available-for-sale securities $(586)
Less:
Reclassification adjustment for gains
realized, included in net income -
-----
Net unrealized gains (losses) on
available-for-sale $(586)
=====
See Notes to Condensed Consolidated Financial Statements
</TABLE>
3
<PAGE>
<PAGE>
<TABLE>
ALLEGIANT BANCORP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<CAPTION>
Six Months Ended
June 30,
--------------------
1999 1998
-------- --------
(Dollars in thousands)
<S> <C> <C>
OPERATING ACTIVITIES:
- --------------------
Net income $ 2,347 $ 1,704
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 1,743 2,132
Provision for loan losses 1,012 715
Gain on sale of mortgage loans - (608)
Gain on sale of securities available-for-sale - (58)
Changes in assets and liabilities:
Accrued interest receivable and
other assets 230 (388)
Other liabilities (1,127) 326
-------- --------
Cash provided by operating activities 4,205 3,823
-------- --------
INVESTING ACTIVITIES:
- --------------------
Proceeds from maturities of securities held-to-maturity 2,648 12,354
Purchase of investment securities held-to-maturity (918) -
Proceeds from maturities of securities available-for-sale 11,859 17,696
Proceeds from sales of securities available-for-sale - 5,546
Purchase of investment securities available-for-sale (16,306) (36,608)
Loans made to customers, net of repayments (48,327) (48,532)
Proceeds from sale of mortgage loans - 50,341
Purchase of assets held for operating leases - (3,049)
Additions to premises and equipment (525) (1,398)
-------- --------
Cash used in investing activities (51,569) (3,650)
-------- --------
FINANCING ACTIVITIES:
- --------------------
Net increase (decrease) in deposits 39,050 (1,093)
Net increase (decrease) of short-term borrowings 5,122 (12,689)
Proceeds from issuance of long-term debt - 17,500
Decrease in long-term debt (3,000) -
Proceeds from issuance of common stock 417 567
Payment of dividends (331) (275)
-------- --------
Cash provided by financing activities 41,258 4,010
-------- --------
Net increase (decrease) in cash and cash equivalents (6,106) 4,183
Cash and cash equivalents, beginning of period 17,123 16,472
-------- --------
Cash and cash equivalents, end of period $ 11,017 $ 20,655
======== ========
See Notes to Consolidated Financial Statements
</TABLE>
4
<PAGE>
ALLEGIANT BANCORP, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
JUNE 30, 1999
Basis of Presentation
The accompanying condensed consolidated financial statements
include the accounts of Allegiant Bancorp, Inc. and its subsidiaries:
Allegiant Bank and Edge Mortgage Services, Inc. ("Edge"). The results
of operations of Edge are included through March 19, 1999, the date Edge
was sold to a former officer of the Company. The sale had no material
effect on the consolidated financial statements of the Company. The
terms "Allegiant," "company," "we" and "our" as used in this report
refer to Allegiant Bancorp, Inc. and our subsidiaries as a consolidated
entity, except where it is make clear that it means only Allegiant.
Also, sometimes we refer to our bank subsidiaries as the "bank."
The accompanying unaudited condensed consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a
fair presentation have been included. Operating results for the three-
month and six-month periods ended June 30, 1999 are not necessarily
indicative of the results that may be expected for the year ending
December 31, 1999.
The balance sheet at December 31, 1998 has been derived from the
audited financial statements at that date but does not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements.
For further information, refer to the consolidated financial
statements and footnotes thereto included in our Annual Report on Form
10-K/A for the year ended December 31, 1998.
Comprehensive Income
During the second quarter of 1999 and 1998, total comprehensive
income amounted to $931 thousand and $999 thousand, respectively.
Through June 30, year-to-date total comprehensive income for 1999 and
1998, was $1.76 million and $1.68 million, respectively.
Subsequent Events
Trust Preferred Securities
On August 2, 1999, we completed a public offering of 1,500,000
9.875% Cumulative Trust Preferred Securities. The Trust Preferred
Securities were issued by our subsidiary, Allegiant Capital Trust I, a
Delaware statutory business trust. The Trust Preferred Securities have
a liquidation amount of $10 per security and represent preferred
undivided interests in the assets of the Trust which consist solely of
the debentures described below, and payments in respect thereof.
5
<PAGE>
<PAGE>
The Trust utilized the proceeds from the sale of the Trust
Preferred Securities to purchase at par approximately $15.00 million
aggregate principal amount of 9.875% Junior Subordinated Debentures
issued by us. The Junior Subordinated Debentures bear interest at the
rate of 9.875% per annum, payable quarterly, and mature in August 2029,
subject to earlier repayment at our option at a date no earlier than
August 2004. In addition, we may redeem the Junior Subordinated
Debentures prior to such date within 90 days after: the occurrence of
certain tax events; the Trust being deemed to be an investment company;
or there is an adverse change in the treatment of the Trust Preferred
Securities as Tier 1 capital for bank regulatory purposes. We have the
right to defer payments of interest on the Junior Subordinated
Debentures for up to 20 consecutive quarters, but not beyond their
stated maturity date. During any period of interest deferral, we may not
declare or pay cash dividends on, or redeem our capital stock or repay
any debt securities which rank junior to the Junior Subordinated
Debentures.
We used the proceeds from the sale of the Junior Subordinated
Debentures, after payment of expenses of approximately $850 thousand, to
infuse approximately $8.00 million of capital into the bank and to repay
approximately $2.50 million of corporate indebtedness, including $2.00
million which was used to repurchase shares of our common stock. The
balance of the proceeds will be used for general corporate purchases,
including possible future repurchases of our common stock.
Common Stock Repurchase
In July 1999, we repurchased 233,219 shares of our common stock in
a privately negotiated transaction. The aggregate purchase price was
$2.33 million, which was funded by a $2.00 million borrowing under our
revolving line of credit and by cash on hand. We will repay the
revolving line of credit in August 1999 with the proceeds of our trust
preferred securities offering and we will prepay a portion of our term
loan with such proceeds.
6
<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This report contains certain forward-looking statements with respect
to the financial condition, results of operations and business of us and
our subsidiaries. These forward-looking statements involve certain risks
and uncertainties. For example, by accepting deposits at fixed rates,
at different times and for different terms, and lending funds at fixed
rates for fixed periods, a bank accepts the risk that the cost of funds
may rise and interest on loans and investment securities may be at a fixed
rate. Similarly, the cost of funds may fall, but a bank may have committed
by virtue of the term of a deposit to pay what becomes an above-market rate.
Investments may decline in value in a rising interest rate environment.
Loans have the risk that the borrower will not repay all funds in a timely
manner as well as the risk of total loss. Collateral may or may not have
the value attributed to it. The loan loss reserve, while believed adequate,
may prove inadequate if one or more large borrowers, or numerous smaller
borrowers, or a combination of both, experience financial difficulty for
individual, national or international reasons. Because the business of
banking is highly regulated, decisions of governmental authorities, such
as the rate of deposit insurance, can have a major effect on operating
results. Unanticipated events associated with Year 2000 compliance,
relating to work on developments or modifications to computer systems and
to software, including work performed by suppliers or vendors, could affect
our future financial condition and operating results. All of these
uncertainties, as well as others, are present in a banking operation and
shareholders are cautioned that management's view of the future on which
it prices its products, evaluates collateral, sets loan reserves and
estimates costs of operation and regulation may prove to be other than
anticipated.
Overview
The profitability of our operations depends on our net interest
income, provision for loan losses, non-interest income and non-interest
expense. Net interest income is the difference between the income we receive
on our loan and investment portfolios and our cost of funds, which consists
of interest paid on deposits and borrowings. The provision for loan losses
reflects the cost of credit risk in our loan portfolio. Non-interest income
consists primarily of service charges on deposit accounts and fees for
ancillary banking services and, to a lesser extent, revenues generated from
our mortgage banking, securities brokerage, insurance brokerage and trust
operations. Non-interest expense includes salaries and employee benefits as
well as occupancy, data processing, marketing, professional fees, insurance
and other expenses.
Net interest income is dependent on the amounts and yields of interest
earning assets compared to the amounts and rates on interest bearing
liabilities. Net interest income is sensitive to changes in market rates
of interest and our asset/liability management procedures in managing those
changes. The provision for loan losses is dependent on increases in the
loan portfolio, management's assessment of the collectibility of the loan
portfolio and loss experience, as well as economic and market factors.
Since the beginning of 1998, we have focused primarily upon improving
the profitability of our banking operations. As a result we have reduced
the amount of one- to four-family mortgages we hold in our loan portfolio,
while increasing the amount of higher yielding commercial loans. We also
have hired several experienced banking professionals with experience in
the St. Louis metropolitan area. We have refined our market focus to
concentrate exclusively on opportunities in the higher-growth St. Louis
metropolitan area and, accordingly, we sold three retail banking offices
in northeastern Missouri in December 1998. We also have implemented
company-wide cost-control efforts to enhance efficiencies at our entire
operations.
Our primary financial objectives are to continue to grow our loan
portfolio while maintaining high asset quality, expand our core deposit
base to provide a cost-effective and stable source of funding
7
<PAGE>
<PAGE>
our loan portfolio and increase non-interest income while maintaining
strong expense controls. We believe we have maintained high asset
quality while managing growth both internally and by acquisition. We
also believe our history of strong credit quality has resulted from
sound credit practices.
Results of Operations
Net income for the three months ended June 30, 1999 was $1.35
million, a 25.00% increase over the $1.08 million earned for the
second quarter of 1998. Both basic earnings per share and diluted
earnings per share were $0.20 for the second quarter of 1999 compared
to basic and diluted earnings per share for the second quarter of 1998
of $0.17 and $0.16, respectively. The annualized return on average
assets for the second quarter of 1999 was 0.87% and represented a
24.29% improvement over the 0.70% annualized return on average assets
reported for the second quarter of 1998. The return on average equity
on an annualized basis was 10.86% for the second quarter of 1999
compared to 9.96% for the second quarter of 1998.
Net income for the six-month periods ended June 30, 1999 and 1998,
was $2.35 million and $1.70 million, respectively. Net income increased
38.24% for the comparable periods. Basic earnings per share increased
by 28.57% to $0.36 from $0.28 and diluted earnings per share increased
34.62% to $0.35 from $0.26 in the respective six-month periods. The
annualized return on average assets was 0.77% and the annualized return
on average equity was 9.66% for the six months ended June 30, 1999.
This compares to, on an annualized basis, a return on average assets of
0.56% and a return on average equity of 8.00% for the corresponding
period in 1998.
We experienced modest growth during the first six months of 1999.
Period end total assets increased $41.89 million, or 7.03%, from
December 31, 1998 to June 30, 1999. Asset growth during the period was
primarily in loans which before allowance for loan losses, increased
$47.96 million, or 9.68%. Deposit balances increased $39.05 million,
or 8.66%, from December 31, 1998 to June 30, 1999. Money market accounts
increased $47.71 million. This growth was a result of promotion of a new
money market product and resulted in a shift in deposits from maturing
certificates of deposit under $100,000. Certificates of deposit under
$100,000 decreased by a net of $10.38 million during the first six months
of 1999. Certificates of deposit over $100,000 increased $2.93 million
during the first six months of 1999, including a $15 million net increase
from brokered CD's issued in February.
Net Interest Income
Net interest income for the three months ended June 30, 1999 was
$6.16 million, a 17.61% increase compared to the $5.24 million reported
for the second quarter of 1998. Interest income increased $20 thousand
in the second quarter of 1999 compared to the second quarter of 1998 as
a result of a $15.54 million increase in average earnings assets offset
by a decrease in the average yield on earning assets of 20 basis points.
Interest expense in the second quarter of 1999 decreased $902 thousand
compared to the second quarter of 1998 as a result of a $201 thousand
decrease in average interest bearing liabilities and a 69 basis point
decrease in the average rate paid on interest bearing liabilities.
Net interest margin for the second quarter of 1999 increased 54
basis points compared to the second quarter of 1998. The earning
assets yield declined 20 basis points while our efforts to shift maturing
certificates of deposit into other deposit accounts at lower rates
resulted in a 62 basis point reduction in the overall interest rate
paid on interest bearing deposits. The net interest spread increased
48 basis points in the second quarter 1999 compared to the second
quarter of 1998.
8
<PAGE>
<PAGE>
Interest expense on deposits declined $705 thousand due to
a $2.28 million decline in average interest bearing deposits and
a decline in the rate paid on deposits from 5.19% in the second
quarter of 1998 to 4.57% for the second quarter of 1999. The decrease
in interest expense on deposits consisted primarily of a $861 thousand
decline in interest expense on certificates of deposit under $100,000,
offset by a $492 thousand increase in interest expense on money markets
and NOW accounts. The average balance in certificates of deposit under
$100,000 decreased by $38.78 million from the second quarter of 1998
to the second quarter of 1999 and the rate paid declined 64 basis points
between those periods. The decrease in average deposits resulted
principally from the $39.99 million reduction from the December 1998
sale of the bank's branches located outside the St. Louis metropolitan
area.
The rate paid on other interest bearing liabilities also contributed
to the net interest margin improvement. The average balances on other
interest bearing liabilities increased $2.08 million in the second quarter
of 1999 compared to the second quarter of 1998. The rate paid on short-term
borrowings decreased 91 basis points and the rate paid on long-term
borrowings declined from 7.07% for the second quarter of 1998 to 5.98%
for the second quarter of 1999. During October 1998, we refinanced a
portion of our long-term debt and redeemed all our outstanding subordinated
debentures with a $13.65 million, 7.00% fixed rate, three-year loan.
Net interest income for the six months ended June 30, 1999 was $12.00
million, a 12.47% increase compared to the $10.67 million reported for the
corresponding period in 1998. Interest income decreased $325 thousand in
the first six months of 1999 compared to 1998 as a result of a decrease
in the average yield on earning assets of 15 basis points. The decrease
in interest income was partially offset by a $2.10 million increase in
average earnings assets. Interest expense in the first six months of 1999
decreased $1.66 million compared to the corresponding period of 1998 as
a result of a $9.19 million decrease in average interest bearing liabilities
and a 55 basis point decrease in the average rate paid on interest bearing
liabilities.
Net interest margin for the first six months of 1999 increased 45 basis
points compared to the corresponding period in 1998. The earning assets
yield declined 15 basis points while our efforts to shift maturing
certificates of deposit into other deposit accounts at lower rates resulted
in a 56 basis point reduction in the overall interest rate paid on interest
bearing deposits. The net interest spread increased 40 basis points
comparing the first six months of 1999 to the first six months of 1998.
Interest expense on deposits declined $1.47 million due to a $11.54
million decline in average interest bearing deposits and a decline in
the rate paid on deposits from 5.21% for the first six months of 1998
to 4.65% for the comparable period in 1999. The decrease in interest
expense on deposits consisted primarily of a $1.64 million decline in
interest expense on certificates of deposit under $100,000, offset by a
$837 thousand increase in interest expense on money markets and NOW
accounts. The average balance in certificates of deposit under $100,000
decreased by $39.99 million from the first six months of 1998 compared
to the same period in 1999 and the rate paid declined 52 basis points
between those periods. The decrease in average deposits resulted
principally from the $39.99 million reduction from the December
1998 sale of the bank's branches located outside the St. Louis
metropolitan area.
The rate paid on other interest bearing liabilities also contributed
to the net interest margin improvement. The average balances on other
interest bearing liabilities increased $2.35 million during the first
six months of 1999 compared to the corresponding period in 1998. The
rate paid on short-term borrowings remained the same while the rate
paid on long-term borrowings declined from 7.32% for the first six
months of 1998 to 5.98% for the first six months of 1999. During
October 1998, we refinanced a portion of our long-term debt and redeemed
all our outstanding subordinated debentures with a $13.65 million, 7.00%
fixed rate, three-year loan.
9
<PAGE>
<PAGE>
The following table sets forth the condensed average balance
sheets for the periods. Also shown is the average yield on each
category of interest earning assets and the average rate paid on
interest bearing liabilities for each of the periods reported:
<TABLE>
DISTRIBUTION OF AVERAGE ASSETS, LIABILITIES AND SHAREHOLDERS' EQUITY AND INTEREST RATES
<CAPTION>
Three Months Ended June 30,
----------------------------------------------------------------------------
1999 1998
------------------------------------ ----------------------------------
Average Int. Earned/ Yield/ Average Int. Earned/ Yield/
Balance Expense Rate<F1> Balance Expense Rate<F1>
------- ------------ -------- ------- ------------ --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning assets:
Loans<F2> $529,146 $11,471 8.70% $502,654 $11,177 8.92%
Taxable investment securities 54,588 793 5.81 59,877 951 6.37
Non-taxable investment securities<F3> 1,750 21 4.80 1,563 18 4.62
Federal funds sold 1,851 23 4.98 8,625 142 6.60
-------- ------- -------- -------
Total interest-earning assets 587,335 12,308 8.41 572,719 12,288 8.61
-------- ------- -------- -------
Non-interest earning assets:
Cash and due from banks 11,365 13,072
Bank premises and equipment 10,867 11,193
Other assets 20,834 26,163
Allowance for loan losses (6,874) (5,487)
-------- --------
Total assets $623,527 $617,660
======== ========
Liabilities and shareholders' equity:
Interest bearing liabilities:
Money market/NOW accounts $179,635 1,808 4.04 $126,579 1,316 4.17
Savings deposits 14,942 80 2.15 16,939 116 2.75
Certificates of deposit 190,086 2,431 5.13 228,868 3,292 5.77
Certificates of deposit
over $100,000 29,525 347 4.71 43,039 601 5.60
IRA certificates 19,567 272 5.58 20,611 318 6.19
-------- ------- -------- -------
Total interest bearing deposits 433,755 4,938 4.57 436,036 5,643 5.19
-------- ------- -------- -------
Federal funds purchased, repurchase
agreements, and other short-term
borrowings 51,760 647 5.01 46,946 693 5.92
Long-term borrowings 37,879 565 5.98 40,613 716 7.07
-------- ------- -------- -------
Total interest bearing liabilities 523,394 6,150 4.71 523,595 7,052 5.40
-------- ------- -------- -------
Non-interest bearing liabilities:
Demand deposits 49,786 45,672
Other liabilities 654 5,038
Shareholders' equity 49,693 43,355
-------- --------
Total liabilities and
shareholders' equity $623,527 $617,660
======== ========
Net interest income $ 6,158 $ 5,236
======= =======
Net interest spread 3.69 3.21
Net interest margin 4.21 3.67
<FN>
- ----------------
<F1>All yields are annualized.
<F2>Average balances include non-accrual loans.
<F3>Presented at actual yield rather than the tax-equivalent yield.
</TABLE>
10
<PAGE>
<PAGE>
The following table sets forth the condensed average balance sheets
for the periods reported and the percentage of each principal category
of assets, liabilities and shareholders' equity to total assets. Also
shown is the average yield on each category of interest earning assets
and the average rate paid on interest bearing liabilities for each of
the periods reported:
<TABLE>
DISTRIBUTION OF AVERAGE ASSETS, LIABILITIES AND SHAREHOLDERS' EQUITY AND INTEREST RATES
<CAPTION>
Six Months Ended June 30,
----------------------------------------------------------------------------
1999 1998
------------------------------------ ----------------------------------
Average Int. Earned/ Yield/ Average Int. Earned/ Yield/
Balance Paid Rate<F1> Balance Paid Rate<F1>
------- ------------ -------- ------- ------------ --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning assets:
Loans<F2> $518,547 $22,545 8.77% $504,128 $22,319 8.93%
Taxable investment securities 52,912 1,548 5.85 63,583 2,023 6.42
Non-taxable investment securities<F3> 1,583 38 4.80 1,521 32 4.24
Federal funds sold 4,316 102 4.77 6,030 184 6.15
-------- ------- -------- -------
Total interest earning assets 577,358 24,233 8.46 575,262 24,558 8.61
-------- ------- -------- -------
Non-interest earning assets:
Cash and due from banks 13,409 11,482
Bank premises and equipment 10,917 10,906
Other assets 22,243 26,677
Allowance for loan losses (6,601) (5,418)
-------- --------
Total assets $617,326 $618,909
======== ========
Liabilities and shareholders' equity:
Interest bearing liabilities:
Money market/NOW accounts $167,413 3,339 4.02 $121,334 2,502 4.16
Savings deposits 14,910 159 2.15 16,632 225 2.73
Certificates of deposit 191,368 5,005 5.27 231,359 6,648 5.79
Certificates of deposit
over $100,000 31,488 746 4.78 45,997 1,273 5.58
IRA certificates 19,121 545 5.75 20,518 613 6.02
-------- ------- -------- -------
Total interest bearing deposits 424,300 9,794 4.65 435,840 11,261 5.21
-------- ------- -------- -------
Federal funds purchased, repurchase
agreements, and other short-term
borrowings 51,847 1,286 5.00 50,666 1,257 5.00
Long-term borrowings 39,070 1,158 5.98 37,903 1,375 7.32
-------- ------- -------- -------
Total interest bearing liabilities 515,217 12,238 4.79 524,409 13,893 5.34
-------- ------- -------- -------
Non-interest bearing liabilities:
Demand deposits 50,786 45,759
Other liabilities 2,316 5,789
Shareholders' equity 49,007 42,952
-------- --------
Total liabilities and
shareholders' equity $617,326 $618,909
======== ========
Net interest income $11,995 $10,665
======= =======
Net interest spread 3.67 3.27
Net interest margin 4.19 3.74
<FN>
- --------------------
<F1>All yields are annualized.
<F2>Average balances include non-accrual loans.
<F3>Presented at actual yield rather than the tax-equivalent yield.
</TABLE>
11
<PAGE>
<PAGE>
The following table sets forth for the periods indicated the changes
in interest income and interest expense which were attributable to change
in average volume and changes in average rates. Volume variances are
computed using the change in volume multiplied by the previous year's
rate. Rate variances are computed using the changes in rate multiplied
by the previous year's volume. The change in interest due to both rate
and volume has been allocated between the factors in proportion to the
relationship of the absolute dollar amounts of the change in each.
<TABLE>
RATE/VOLUME ANALYSIS
<CAPTION>
Quarter Ended June 30, 1999 Six Months Ended June 30, 1999
Compared to the Compared to the
Quarter Ended June 30, 1998 Six Months Ended June 30, 1998
--------------------------------- ---------------------------------
Net Net
Volume Rate Change Volume Rate Change
------ ---- ------ ------ ---- ------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Interest earned on:
Loans 576 (282) 294 631 (405) 226
Taxable investment securities (79) (79) (158) (310) (165) (475)
Non-taxable securities 3 - 3 1 5 6
Federal funds sold and
other investments (90) (29) (119) (45) (37) (82)
----- ----- ----- ------- ------- -------
Total interest income 410 (390) 20 277 (602) (325)
----- ----- ----- ------- ------- -------
Interest paid on:
Money Market and
NOW accounts 536 (44) 492 925 (88) 837
Savings deposits (13) (23) (36) (22) (44) (66)
Certificates of deposit (520) (341) (861) (1,081) (562) (1,643)
Certificates of deposit
over $100,000 (168) (86) (254) (362) (165) (527)
IRA certificates (16) (30) (46) (41) (27) (68)
Federal funds purchased and
other short-term borrowings (67) (113) (46) 29 - 29
Long-term borrowings (46) (105) (151) 40 (257) (217)
----- ----- ----- ------- ------- -------
Total interest expense (160) (742) (902) (512) (1,143) (1,655)
----- ----- ----- ------- ------- -------
Net interest income $ 570 $ 352 $ 922 $ 789 $ 541 $ 1,330
===== ===== ===== ======= ======= =======
</TABLE>
12
<PAGE>
<PAGE>
Other Income
Other income decreased by $988 thousand to $1.19 million for the
second quarter ended June 30, 1999 compared to $2.18 million for the
second quarter in 1998. A substantial portion of the decrease was
related to a $611 thousand gain on the sale of mortgage loans recognized
in June 1998.
For the quarter ended June 30, 1999 mortgage banking revenue was
$278 thousand compared to $630 thousand for the quarter ended June 30,
1998, a 55.87% decrease. The change occurred primarily as a result of
the sale of Edge in March 1999. Edge realized $310 thousand in fee
income in the second quarter of 1998. The sale of Edge was consistent
with our strategic focus to concentrate our resources on increasing our
commercial loan portfolio.
Operating lease income decreased 49.24% to $235 thousand for the
quarter ended June 30, 1999 from $463 thousand for the comparable
quarter in 1998. The decrease in income was related to the decision to
terminate production of operating leases in the latter half of 1998.
Service charge income for the three-month period ended June 30,
1999 increased $29 thousand, or 21.97%, compared to the second quarter
of 1998. Overdraft fees increased $34 thousand, or 16.83%, compared to
the second quarter of 1998. These increases were attributable to our
focus on revenue enhancement programs.
All other non-interest income increased 102.92% for the quarter
ended June 30, 1999 to $278 thousand, compared to $137 thousand for the
second quarter of 1998. This increase included the gain on sale of two
parcels of other real estate owned totaling $92 thousand.
Other income decreased by $843 thousand to $2.44 million for the
first six months of 1999 compared to $3.29 million for the corresponding
period in 1998. As mentioned in the discussion of the three-month
periods, the June 1998 gain of $611 thousand on the sale of mortgage
loans and the sale of Edge in March 1999 accounted for the most
significant proportion of the decrease in other income from 1998 to
1999.
Other Expenses
For the three months ended June 30, 1999 other expenses decreased
$1.02 million or 17.92%, to $4.65 million from $5.67 million for the
second quarter of 1998 due primarily to our sale in December 1998 of the
three branches in Northeast Missouri and our efforts to control operating
costs.
Salaries and employee benefits increased $139 thousand, or 6.15%,
to $2.40 million for the three months ended June 30, 1999 compared to
$2.26 million for the three months ended June 30, 1998. Additional
expenses were incurred due to management and support staff additions
during 1999 in our St. Louis locations which was partially offset by a
reduction of employees upon the December 1998 sale of the bank branches
in Northeast Missouri. We had 223 full-time equivalent ("FTE") employees
at both June 30, 1999 and 1998. Total annualized cost per FTE employee
was $43,186 for the three months ended June 30, 1999 compared to $40,685
for the corresponding period of 1998.
Expenses associated with premises and equipment decreased for the
quarter ended June 30, 1999 as compared to the second quarter of 1998,
with occupancy expense decreasing $36 thousand and furniture and
equipment decreasing $20 thousand. Operating lease depreciation
decreased by $203 thousand to $204 thousand for the three months ended
June 30, 1999 from $407 thousand for the three months ended June 30,
1998. This decrease was reflective of the bank's decision to decrease
production of operating leases in the latter half of 1998.
13
<PAGE>
<PAGE>
Supplies expense decreased 60.60% from $198 thousand for the
quarter ended June 30, 1998 to $78 thousand for the same period in 1999.
This change reflects our efforts to control costs as well as the results
of implementing a centralized purchasing function.
All other expenses decreased $775 thousand, or 38.75%, from $2.00
million for the quarter ended June 30, 1998 to $1.23 million for the
second quarter of 1999. The decline in other expenses was a direct
result of fewer offices due to our sale in December 1998 of the three
branches and our efforts to control operating costs.
For the six months ended June 30, 1999 other expenses decreased
$1.62 million, or 14.52%, to $9.51 million from $1.13 million for the
same period in 1998. The variances in expense categories discussed
above for the three-month periods showed similar trends for the year-to-
date amounts.
Our efficiency ratio was 63.35% for the quarter and 65.89% for the
six months ended June 30, 1999 compared to 71.44% for the quarter and
74.65% for the six months ended June 30, 1998. This improvement in the
efficiency ratio was a direct result of our commitment to enhancing
overall efficiency by continuing to emphasize revenue growth while
controlling the current level of operating expenses.
14
<PAGE>
<PAGE>
Securities Portfolio
Our securities portfolio consists of securities classified as
held-to-maturity and available-for-sale. We designate these securities
upon purchase into one of these two categories. At June 30, 1999, held-
to-maturity securities amounted to $10.31 million, representing those
securities we intended to hold to maturity. Securities designated as
available-for-sale totaled $46.26 million representing securities which
we may sell to meet liquidity needs or in response to significant
changes in interest rates or prepayment patterns.
At June 30, 1999, our securities portfolio totaled $56.57 million,
an increase of $1.79 million, or 3.27% from December 31, 1998. We
maintain a traditional short-term laddered portfolio investment strategy
to insure adequate liquidity while minimizing interest rate risk.
The carrying values of the securities portfolio at the dates
indicated were as follows:
<TABLE>
SECURITIES PORTFOLIO
<CAPTION>
June 30, December 31, June 30,
1999 1998 1998
-------- ------------ --------
(Dollars in thousands)
<S> <C> <C> <C>
U.S. Government and agency securities $40,392 $37,021 $63,552
State and municipal securities 2,224 1,464 1,554
Mortgage-backed securities 9,889 11,930 8,073
Federal Home Loan Bank stock 3,574 3,574 3,349
Other securities 494 791 1,366
------- ------- -------
Total securities $56,573 $54,780 $77,894
======= ======= =======
</TABLE>
Loans
Loans have historically been the primary component of earning
assets. At June 30, 1999, loans totaled $543.63 million, an increase of
$47.96 million, or 9.68%, from December 31, 1998. Substantially all of
these loans were originated in our market area. At June 30, 1999, we
had no foreign loans and only a minimal amount of participations
purchased.
The increase in loans during the first six months of 1999
consisted primarily of growth in multi-family and commercial real
estate, real estate construction and commercial loans. Multi-family and
commercial real estate loans, increased $20.44 million, or 10.40%, to
$216.99 million at June 30, 1999. Real estate construction loans
increased $13.92 million, or 38.04%, to $50.51 million at June 30, 1999.
Commercial and other industrial loans increased $12.56 million, or
9.95%, to $138.80 million at June 30, 1999. The increases in these loan
categories reflect our efforts to grow our commercial loan portfolio,
including loans originated by our expanded commercial lending staff.
15
<PAGE>
<PAGE>
The following table summarizes the composition of our loan
portfolio at the dates indicated:
<TABLE>
LENDING AND CREDIT MANAGEMENT<F1>
<CAPTION>
June 30, December 31, June 30,
1999 1998 1998
----------------- ----------------- -----------------
Percent Percent Percent
Amount of Total Amount of Total Amount of Total
------ -------- ------ -------- ------ --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Commercial, financial,
agricultural, municipal and
industrial development $138,802 25.53% $126,239 25.47% $111,330 23.02%
Real estate--construction 50,508 9.29 36,590 7.38 25,574 5.29
Real estate--mortgage
One- to four-family 117,604 21.63 116,291 23.46 121,390 25.10
Multi-family and commercial 216,985 39.92 196,545 39.65 210,140 43.45
Consumer and other 20,460 3.76 20,908 4.22 16,055 3.32
Less unearned income (731) (0.13) (904) (0.18) (845) (0.18)
-------- ------ -------- ------ -------- ------
Total loans<F1> $543,628 100.00% $495,669 100.00% $483,644 100.00%
======== ====== ======== ====== ======== ======
<FN>
<F1> The bank had no outstanding foreign loans at the dates reported.
</TABLE>
Asset Quality
Non-performing assets consist of the following: nonaccrual loans
on which the ultimate collectibility of the full amount of interest is
uncertain; loans which have been renegotiated to provide for a reduction
or deferral of interest or principal because of a deterioration in the
financial condition of the borrower; and loans past due 90 days or more
as to principal or interest and other real estate owned. Non-performing
assets decreased 50.90% to $873 thousand at June 30, 1999 compared to
$1.78 million at December 31, 1998. At June 30, 1999, non-performing
assets represented 0.14% of total assets compared to 0.30% at December
31, 1998. Non-accrual loans totaled $666 thousand at June 30, 1999
compared to $1.71 million at December 31, 1998.
We continually analyze our loan portfolio to identify potential
risk elements. The loan portfolio is reviewed by lending management and
the bank's internal loan review staff. As an integral part of their
examination process, the various regulatory agencies periodically review
our allowance for loan losses. We believe that our allowance for loan
losses at June 30, 1999 was consistent with applicable regulatory
requirements.
16
<PAGE>
<PAGE>
The following table summarizes, at the dates presented, non-
performing assets by category:
<TABLE>
RISK ELEMENTS--NONACCRUAL, PAST DUE AND RESTRUCTURED LOANS
<CAPTION>
June 30, December 31, June 30,
1999 1998 1998
-------- ------------ --------
(Dollars in thousands)
<S> <C> <C> <C>
Commercial, financial, agricultural, municipal and
industrial development:
Past due 90 days or more $ 116 $ - $ 235
Non-accrual 483 962 319
Restructured terms - - -
Real estate--construction:
Past due 90 days or more - - -
Non-accrual - - -
Restructured terms - - -
Real estate--mortgage:
One- to four-family residential:
Past due 90 days or more 51 69 234
Nonaccrual 146 378 66
Restructured terms - - -
Multi-family and commercial:
Past due 90 days or more - - -
Non-accrual 18 307 274
Restructured terms - - -
Consumer and other, net of unearned income:
Past due 90 days or more - - 48
Non-accrual 19 62 25
Restructured terms - - -
------- ------- -------
Total non-performing loans 833 1,778 1,201
Other real estate 40 - 401
------- ------- -------
Total non-performing assets $ 873 $ 1,778 $ 1,602
======= ======= =======
Ratios:
Non-performing loans to total loans 0.15% 0.36% 0.25%
Non-performing assets to total assets 0.14 0.30 0.20
Non-performing loans to shareholders' equity 1.60 3.70 2.73
Allowance for loan losses to total loans 1.30 1.30 1.18
Allowance for loan losses to non-performing loans 850.54 362.32 468.90
</TABLE>
Interest income that would have been recorded during the three months
and six months ended June 30, 1999 had all non-accrual, past due and
restructured loans been current in accordance with their original terms
was immaterial.
17
<PAGE>
<PAGE>
Allowance for Loan Losses
The provision for loan losses was $1.01 million during the first
six months of 1999 compared to $715 thousand for the corresponding
period in 1998. Net charge-offs were $369 thousand for the six months
ended June 30, 1999 compared to $276 thousand for the first six months
of 1998. Net charge-offs for the first six months of 1999 represented
0.07% of average loans, compared to 0.05% of average loans for the first
six months of 1998.
The allowance for loan losses increased to $7.09 million at June
30, 1999 compared to $6.44 and $5.63 million at December 31, 1998 and
June 30, 1998, respectively. As a percentage of loans outstanding, the
allowance represented 1.30% of loans at June 30, 1999 and December 31,
1998 and 1.16% at June 30, 1998.
The higher expense provision and the higher allowance percentage
were the result of the change in the composition of the loan portfolio
at June 30, 1999 compared to June 30, 1998. Since early 1998, we have
been focused on generating higher yielding loans from the commercial and
industrial underwriting areas rather than lower yielding residential
mortgage loans. The increase in risk as a result of the change in loan
mix was reflected in the higher provision and higher allowance as a
percentage of loans outstanding.
Non-performing assets decreased to $873 thousand at June 30, 1999
compared to $1.78 million at December 31, 1998 and $1.60 million at June
30, 1998. This decrease includes a reduction of nonaccrual loans to $666
thousand at June 30, 1999 compared to $1.71 million at December 31,
1998. Non-performing assets as a percentage of total assets decreased
to 0.14% at June 30, 1999 from 0.20% at June 30, 1998. From year-end
1998, the percentage decreased 16 basis points.
The allowance for loan losses is provided at a level considered
adequate to provide for potential losses and, among other things, is
based on management's evaluation of the anticipated impact on the loan
portfolio of current economic conditions, changes in the character and
size of the loan portfolio, evaluation of potential problem loans
identified based on existing circumstances known to management,
potential future loan losses on loans to specific customers or
industries and recent loan loss experience. We continually monitor the
quality of the loan portfolio to ensure the timely charge-off of problem
loans and to determine the adequacy of the level of the allowance for
loan losses. We presently believe that our asset quality, as measured by
the statistics in the following table, continues to be very high and
that our allowance is adequate to absorb potential losses inherent in
the portfolio at June 30, 1999.
18
<PAGE>
<PAGE>
The following table summarizes, for the periods indicated,
activity in the allowance for loan losses, including amounts of loans
charged off, amounts of recoveries and additions to the allowance
charged to operating expenses.
<TABLE>
SUMMARY OF LOAN LOSS EXPERIENCE AND RELATED INFORMATION
<CAPTION>
Six Months Ended
June 30,
--------------------
1999 1998
-------- --------
(Dollars in thousands)
<S> <C> <C>
Allowance for loan losses
(beginning of period) $ 6,442 $ 5,194
Loans charged off:
Commercial, financial, agricultural,
municipal and industrial development (243) (136)
Real estate - construction - (7)
Real estate - mortgage
One- to-four family residential (112) (78)
Multi-family and commercial - (40)
Consumer and other (71) (56)
-------- --------
Total loans charged off (426) (317)
-------- --------
Recoveries of loans previously charged off:
Commercial, financial, agricultural,
municipal and industrial development 7 3
Real estate - construction - 5
Real estate - mortgage
One- to-four family residential 42 7
Multi-family and commercial - 20
Consumer and other 8 6
-------- --------
Total recoveries 57 41
-------- --------
Net loans charged off (369) (276)
-------- --------
Provision for loan losses 1,012 715
-------- --------
Allowance for loan losses (end of period) $ 7,085 $ 5,633
======== ========
Loans outstanding:
Average $518,547 $504,128
End of period 543,628 483,644
Ratios:
Net charge-offs to average loans outstanding 0.07% 0.05%
Net charge-offs to provisions for loans losses 36.36 38.60
Provision for loan losses to average loans outstanding 0.20 0.14
Allowance for loan loss to total loans outstanding 1.30 1.16
</TABLE>
19
<PAGE>
<PAGE>
Deposits
Total deposits increased $39.05 million, or 8.66%, during the
first six months of 1999. The increase was primarily a result of a
$47.71 million, or 38.53%, increase in money market accounts.
Certificates of deposit under $100,000 decreased $10.38 million, or
5.52%. Demand deposits decreased by $5.42 million, or 9.78%, from
December 31, 1998 to June 30, 1999, but the average demand deposit
balances during the first six months of 1999 were $50.79 million
compared to $45.76 million for the corresponding period in 1998. The
shift in deposits was a result of management's efforts to replace higher
yielding deposits with lower cost deposits.
The following table summarizes deposits as of the dates indicated:
<TABLE>
DEPOSIT LIABILITY COMPOSITION
<CAPTION>
June 30, December 31, June 30,
1999 1998 1998
------------------ ------------------ ------------------
Percent Percent Percent
Amount of Total Amount of Total Amount of Total
Deposits Deposits Deposits Deposits Deposits Deposits
-------- -------- -------- -------- -------- --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Demand deposits $ 49,997 10.21% $ 55,417 12.29% $ 48,685 10.07%
NOW accounts 20,614 4.21 19,075 4.23 19,892 4.11
Money market accounts 171,535 35.02 123,827 27.47 109,295 22.60
Savings deposits 14,706 3.00 14,917 3.31 17,417 3.60
Certificates of deposit 177,511 36.24 187,886 41.68 228,868 47.34
Certificates of deposit
over $100,000 34,100 6.96 31,173 6.92 38,630 7.99
IRA certificates 21,353 4.36 18,471 4.10 20,761 4.29
-------- ------ -------- ------ -------- ------
Total deposits $489,816 100.00% $450,766 100.00% $483,548 100.00%
======== ====== ======== ====== ======== ======
</TABLE>
20
<PAGE>
<PAGE>
LIQUIDITY MANAGEMENT AND CAPITAL RESOURCES
Liquidity Management
Long-term liquidity is a function of the core deposit base and an
adequate capital base. We are committed to growth of our core deposit
base. This growth is both internally generated through product pricing
and product development and externally generated. During the six months
ended June 30, 1999 and the year ended December 31, 1998, both of these
elements contributed heavily to developing and maintaining long-term
liquidity. Our capital position has been maintained through earnings
and raising of capital. See "Capital Resources."
Short-term liquidity needs arise from continuous fluctuations in
the flow of funds on both sides of the balance sheet resulting from
growth and seasonal and cyclical customer demands. The securities
portfolio provides stable long-term earnings as well as being a primary
source of liquidity. The designation of securities as available-for-
sale and held-to-maturity does not impact the portfolio as a source of
liquidity due to the ability to enter into repurchase agreements using
those securities.
We anticipate continued loan demand in our market areas as banking
industry consolidation continues. We have utilized, and expect to
continue to utilize, Federal Home Loan Bank borrowings to fund a portion
of future loan growth. We have a $70.25 million secured credit facility
with the Federal Home Loan Bank, of which $64.13 million and $66.13
million were outstanding at June 30, 1999 and December 31, 1998,
respectively.
Average short-term borrowings increased $1.18 million, or 2.33%,
during the first six months of 1999 following an increase of 0.29 % in
the year ended December 31, 1998. The increases reflected the above-
mentioned strategy of utilizing Federal Home Loan Bank borrowings to
fund loan growth while continuing to systematically build our deposit
base. We anticipate similar use of the Federal Home Loan Bank facility
in the foreseeable future.
We experienced net growth in assets of 7.03% during the first six
months of 1999 and 3.88% from June 30, 1998. Deposits increased 8.66%
during the first six months of 1999 and 1.30% from June 30, 1998. The
increase in assets and deposits from twelve months ago is net of the
results of the sale of the three northeast Missouri branches in December
1998. The branch sale resulted in a reduction of $13.52 million in loans
and $39.99 million in deposits. We continue to emphasize growth in stable
core deposits while utilizing the Federal Home Loan Bank as necessary to
balance liquidity and cost effectiveness. We closely monitor our level
of liquidity to meet expected future needs.
Capital Resources
Total shareholders' equity increased 3.84% to $49.95 million at June 30,
1999 compared to $48.10 million at year-end 1998.
Our capital requirements have been historically financed through
offerings of debt and equity securities, earnings retention and
borrowings from a commercial bank. The bank also utilized its borrowing
capacity with the Federal Home Loan Bank. The principal amount of our
term loan was $13.65 million as of June 30, 1999 and December 31, 1998.
This term loan matures in November 2001.
During the first quarter of 1999, we purchased approximately
$20.00 million of brokered deposits at rates between 4.55% and 4.65% in
order to fund loan growth and to provide for other liquidity needs. Of
such deposits, $5.00 million of such deposits matured in May 1999 and
the remainder matures in August 1999. We may use brokered deposits in
the future as a source of liquidity.
21
<PAGE>
<PAGE>
We may from time to time repurchase shares of our common stock in
private transactions. In July 1999, we repurchased 233,219 shares of
our common stock for $2.33 million, which was funded by a $2.0 million
borrowing under our revolving line of credit and by cash on hand.
We also analyze our capital and the capital position of our bank
in terms of regulatory risk-based capital guidelines. This analysis of
capital is dependent upon a number of factors including asset quality,
earnings strength, liquidity, economic conditions and combinations
thereof. The Federal Reserve Board has issued standards for measuring
capital adequacy for bank holding companies. These standards are
designed to provide risk-responsive capital guidelines and to
incorporate a consistent framework for use by financial institutions.
We believe that, as of June 30, 1999, we and the bank met all capital
adequacy requirements to which we were subject.
Allegiant's and the bank's capital ratios were as follows as of
the dates indicated:
<TABLE>
<CAPTION>
June 30, 1999 December 31, 1998
-------------------------- --------------------------
Allegiant Allegiant Bank Allegiant Allegiant Bank
--------- -------------- --------- --------------
<S> <C> <C> <C> <C>
Total capital (to risk-weighted assets) 8.37% 10.50% 8.14% 9.35%
Tier 1 capital (to risk-weighted assets) 7.12 9.25 6.39 8.27
Tier 1 capital (to average assets) 6.26 8.11 6.15 7.76
</TABLE>
Our commitment to maintaining adequate capital is evidenced by the
significant increase in our average equity to average asset ratio which
improved to 7.94% for the six months ended June 30, 1999 compared to
6.94% for the first six months of 1998. We will seek to maintain a
strong equity base while executing our controlled expansion plans.
On August 2, 1999, we completed a public offering of 1,500,000
Cumulative Trust Preferred Securities which are entitled to receive
cumulative cash distributions at an annual rate of 9.875%. The Trust
Preferred Securities have a liquidation amount of $10 per security and
represent preferred undivided interests in the assets of the Trust which
consist solely of the Junior Subordinated Debentures, and payments in
respect thereof. See Notes to Condensed Consolidated Financial
Statements.
The following table sets forth, as of June 30, 1999, our actual
capital ratios and our as adjusted capital ratios giving effect to the
sale of the Trust Preferred Securities and the issuance of the Junior
Subordinated Debentures as if it had occurred at June 30, 1999:
<TABLE>
<CAPTION>
June 30, 1999
-----------------------------------------------------
Actual As Adjusted
---------------------- --------------------------
"Well- "Well-
capitalized" capitalized"
Capital Standard<F1> Capital<F2> Standard<F1>
------- ------------ ----------- ------------
<S> <C> <C> <C> <C>
Total risk-based capital ratio 8.37% 10.00% 11.16% 10.00%
Tier 1 risk-based capital ratio 7.12 6.00 9.50 6.00
Tier 1 leverage capital ratio 6.26 5.00 8.35 5.00
<FN>
<F1> Reflects the minimum amount of capital necessary to meet the
"well-capitalized" regulatory standard. As of June 30, 1999, we
exceeded the minimum "well-capitalized" standard for both Tier 1
leverage and Tier 1 risk-based capital, but the level of total
risk-based capital was below the "well-capitalized" standard.
After giving effect to the sale of the Trust Preferred Securities
and the issuance of the Junior Subordinated Debentures, we would
have met the "well-capitalized" standard for total risk-based
capital as of June 30, 1999.
22
<PAGE>
<PAGE>
<F2> Federal Reserve Board guidelines for the calculation of Tier 1
capital limit the aggregate amount of trust preferred securities,
including securities similar to the trust preferred securities,
which can be included in Tier 1 capital to 25% of total Tier 1
capital. As of June 30, 1999, $12.76 million of the aggregate
amount of trust preferred securities would have qualified as Tier
1 capital, and the remaining amount would have qualified as Tier 2
capital.
</TABLE>
23
<PAGE>
<PAGE>
YEAR 2000
General Description of the Year 2000 Issue and the Readiness of
Allegiant
The Year 2000 issue is a result of computer programs being written
using two digits rather than four digits to define the applicable year.
Any of our computer programs or hardware that have date-sensitive
software or embedded chips may recognize a date using "00" as the year
1900 rather than the year 2000. This could result in a system failure
or miscalculations causing disruptions of operations including, among
other things, a temporary inability to process transactions, or engage
in similar normal business activities. To mitigate the risk of
disruption, a Year 2000 plan has been developed and implemented. The
plan is comprised of five phases, with completion of all five necessary
to protect us against potential Year 2000 failures.
Our plan to resolve the Year 2000 issue involves the following
five phases: awareness, assessment, remediation, testing and
implementation. During the awareness phase, a comprehensive strategy
for addressing the Year 2000 issue was formulated. We have fully
completed our assessment of all systems that could be significantly
affected by the Year 2000. The completed assessment indicated that most
of the significant information technology systems could be affected,
including the loan, deposit, general ledger and billing systems. All
software and hardware systems have been provided by third party vendors;
therefore, the remediation of systems primarily involves the
installation of upgraded systems that have been certified by the vendors
as Year 2000 compliant. We are in the process of testing all hardware
and software systems to validate that systems have been renovated. In
addition, testing will validate the compatibility of system interfaces.
After all testing is completed, all systems will be implemented, which
will include certification that all systems are Year 2000 compliant.
Year 2000 Status, Including Timetable for Completion
As of the date of this prospectus, the awareness and assessment
phases are 100% complete. The remediation phase is substantially
complete, with only two lesser significant software systems requiring
upgrades. It is anticipated that these systems will be upgraded no
later than September 30, 1999. Testing of our systems is accomplished
after upgrades are provided by and certified as Year 2000 compliant by a
third party vendor. As of the date of this prospectus, approximately
85% of all internal systems have been tested. The testing of mission
critical systems was substantially complete by December 31, 1998.
Except for the two systems identified above, it is anticipated that
testing of all systems will be substantially completed by August 31,
1999, with the implementation phase to be completed by September 30, 1999.
Importance of Third Parties and Their Exposure to the Year 2000
We have some systems that interface directly with significant
third party vendors. These include the Electronic Fund Transfer (EFT)
systems related to wire transfers, automated teller machine and debit
card transactions, in addition to trust system software. These third
parties have made, or are in the process of making, their systems Year
2000 compliant. We are working with these third party vendors to ensure
that the third party systems interface properly with our systems.
Testing for these systems will be accomplished using actual and proxy
testing. Proxy testing is testing that takes place in a controlled
environment using similar software/hardware that we and the third party
vendors utilize. These tests have been completed.
We also have gathered information about the Year 2000 compliance
status of customers with significant credit relationships. In addition,
significant suppliers and other third parties that do not share
information with our systems (external agents) have been queried to
assess their Year 2000 status. As of the date of this report, there is
no evidence of any significant customers or external agents that would
24
<PAGE>
<PAGE>
materially impact our operations, liquidity or capital resources.
However, we have has no means of ensuring that these entities will be
Year 2000 compliant. The inability of third parties and external agents
to complete their Year 2000 resolution process in a timely fashion could
materially impact us. The effect of non-compliant third parties and
external agents is not determinable.
Year 2000 Costs
We have utilized and will continue to utilize both internal and
external resources to reprogram, replace, test and implement the
software and operating equipment for Year 2000 modifications. The total
cost of the Year 2000 project is estimated at $0.23 million and is being
funded through operating cash flows. As of June 30, 1999, we had
incurred approximately $0.20 million ($0.11 million expensed and $0.09
million capitalized for new systems and equipment), related to all
phases of the Year 2000 project. The total remaining project costs,
which we approximate will be $0.03 million, are attributable to the
testing and validation phases of the project and will be expensed as
incurred.
Overall Year 2000 Risks
Management believes it has an effective program in place to
resolve the Year 2000 issue in a timely manner. As noted above, all
necessary phases of the Year 2000 program have not yet been completed.
In the event that such phases are not completed in a timely fashion, we
could experience system failures that may have a significant impact on
our financial condition. In addition, disruptions in the economy
generally resulting from Year 2000 issues also could materially
adversely affect us. We could be subject to litigation for computer
system product failures. The amount of potential liability and lost
revenue cannot be reasonably estimated at this time.
Contingency Planning
We have contingency plans for certain mission critical
applications and are working on plans for all other systems. These
contingency plans involve, among other actions, manual workarounds and
adjusting staffing strategies. In addition, funding plans are being
developed to assure adequate levels of liquid assets are available in
the event of significant customer withdrawals of cash items as a result
of concerns regarding Year 2000 issues.
25
<PAGE>
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There have been no material changes from the information provided
in our Annual Report on Form 10-K/A for the year ended December 31,
1998.
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
For the three months ended June 30, 1999, the only non-registered
sales of our securities were 36,462 shares of common stock issued
pursuant to the exercise of outstanding warrants, at an exercise price
of $5.50 per share. All shares of common stock were issued pursuant to
the exemption provided by Section 4(2) of the Securities Act of 1993, as
amended.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of shareholders of the Company was held on
April 29, 1999. Of 6,560,124 shares issued, outstanding and eligible to
be voted at the meeting, holders of 5,136,875 shares, constituting a
quorum, were represented in person or by proxy at the meeting. One
matter was submitted to a vote of the security holders at the meeting.
ELECTION OF CLASS II DIRECTORS. The only matter submitted was the
election of three Class II director nominees to the Board of Directors,
each to continue in office until the year 2002. The Articles of
Incorporation, as amended, of the Company (the "Articles of
Incorporation") allow cumulative voting in all director elections and
all shareholders were accordingly allowed to cumulate their votes for
directors if they so desired. Upon tabulation of the votes cast, it was
determined that all three director nominees had been elected. The
voting results are set forth below:
NAME FOR WITHHELD
---- --- --------
Leland B. Curtis 5,020,671 116,204
Shaun R. Hayes 5,029,873 107,002
John L. Weiss 5,028,166 108,709
Because the Company has a staggered Board, the term of office of
the following named Class I and Class III directors, who were not up for
election at the 1999 annual meeting, continued after the meeting:
Class I (to continue in office until 2001)
Kevin R. Farrell
Jack K. Krause
Lee S. Wielansky
Class III (to continue in office until 2000)
Marvin S. Wool
C. Virginia Kirkpatrick
Leon A. Felman
26
<PAGE>
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: See Exhibit Index attached hereto.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the quarter ended
June 30, 1999.
27
<PAGE>
<PAGE>
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 authorized. The undersigned signs this
report in his dual capacities as a duly authorized officer of the
registrant and also as the registrant's Chief Financial Officer.
ALLEGIANT BANCORP, INC. (Registrant)
August 9, 1999 By: /s/ Thomas A. Daiber
-------------------------------------------
Thomas A. Daiber, Senior Vice President
and Chief Financial Officer
28
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3.1 By-laws of the Company, as currently in effect.
4.1 Junior Subordinated Indenture, dated as of August 2, 1999,
by and between the Company and Bankers Trust Company, as
Trustee.
10.1 Underwriting Agreement, dated as of July 27, 1999, by and
between the Company and Allegiant Capital Trust I and EVEREN
Securities, Inc. and Wheat First Securities, as
representatives of the several underwriters.
10.2 Guarantee Agreement, dated as of August 2, 1999, between the
Company, as guarantor, and Bankers Trust Company, as
guarantee trustee.
10.3 Amended and Restated Trust Agreement, dated as of August 2,
1999, among the Company, as depositor, Bankers Trust
Company, as property trustee, Bankers Trust (Delaware), as
Delaware trustee, and Shaun R. Hayes and Thomas A. Daiber as
administrators.
11.1 Computation of Earnings Per Share.
27 Financial Data Schedule for the six months ended June 30,
1999.
29
<PAGE>
BY-LAWS OF
ALLEGIANT BANCORP, INC.
ARTICLE I - OFFICES
-------------------
The principal office of the Corporation shall be located in the
County of St. Louis, Missouri. The Corporation may have offices at such
other places, both within and without the State of Missouri, as the
Board of Directors may from time to time designate.
ARTICLE II - SEAL
-----------------
The corporate seal shall have inscribed thereon the name of the
Corporation.
ARTICLE III - SHAREHOLDERS' MEETINGS
------------------------------------
Section 1. Place of Meeting. All meetings of the shareholders
----------------------------
shall be held at the office of the Corporation or at such other place
within or without the State of Missouri as may be designated by the
Chairman of the Board or the Board of Directors.
Section 2. Annual Meeting. The annual meeting of shareholders
--------------------------
shall be held at the time designated by the Board of Directors of the
Corporation in the month of April, in each year, or at such other date or
time as shall be determined by the Chairman of the Board or the Board of
Directors, for the purpose of electing directors and for the transaction of
such other business as may come before the meeting.
Section 3. Quorum. The holders of a majority of the stock issued
------------------
and outstanding, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise
provided by law, by the Corporation's Articles of Incorporation or by
these By-Laws.
Section 4. Voting. Except as otherwise required by law or by the
------------------
Corporation's Articles of Incorporation, at each meeting of the
shareholders, every shareholder shall be entitled to vote in person, or
by proxy appointed by an instrument in writing subscribed by such
shareholder, or by his duly authorized attorney, and he shall have one
vote for each share of stock registered in his name at the time of the
closing of the transfer books for said meeting.
The vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon
which by express provision of the statutes or of the Articles of
Incorporation a different vote is required, in which case such express
provision shall govern and control the decision of such question.
Section 5. Notice of Meeting. Notice of any special or annual
-----------------------------
meeting shall be served personally on each shareholder or shall be
mailed to each shareholder at such address as appears
<PAGE>
<PAGE>
on the stockbook of the Corporation not less than ten (10) days nor more
than sixty (60) days before such meeting. Service or mailing of such
notice shall be made by the Secretary; but in case the Secretary shall
refuse or neglect to serve or mail such notice upon each shareholder as
herein provided, then such service may be made by any officer or
director of the Corporation. The notice of any special meeting shall
state the purpose or purposes of the proposed meeting.
Section 6. Special Meetings. Special meetings of the
----------------------------
shareholders for any purpose or purposes may be called by the Chairman
of the Board or by the Board of Directors, or by the Secretary, at the
request in writing by shareholders owning at least fifty percent (50%)
in the amount of the entire capital stock of the Corporation issued and
outstanding.
Section 7. Waiver of Notice. Any shareholder may waive notice of
----------------------------
any meeting of the shareholders, by a writing signed by him, or by his
duly authorized attorney, either before or after the time of such
meeting. A copy of such waiver shall be entered in the minutes, and
shall be deemed to be the notice required by law or by these By-Laws.
Any shareholder present in person, or represented by proxy, at any
meeting of the shareholders shall be deemed to have thereby waived
notice of such meeting, except where a shareholder attends a meeting for
the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
Section 8. Informal Meetings. Whenever the vote of shareholders
-----------------------------
at a meeting thereof is required or permitted to be taken in connection
with any corporate action by any provisions of the statutes or of the
Articles of Incorporation, the meeting, any notice thereof and vote of
shareholders thereat may be dispensed with if all the shareholders who
would have been entitled to vote upon the action if such meeting were
held shall consent in writing to such corporate action being taken.
Such written consent shall be filed with the minutes of shareholders'
meetings.
Section 9. Shareholders Entitled to Vote. The Board of Directors
-----------------------------------------
may prescribe a period not exceeding fifty (50) days prior to any
meeting of the shareholders during which no transfer of stock on the
books of the Corporation may be made. The Board of Directors may fix a
day not more than fifty (50) days prior to the holding of any meeting of
the shareholders as the day as of which shareholders are entitled to
notice of and to vote at such meeting.
Section 10. List of Voters. A complete list of all shareholders
---------------------------
entitled to vote at any annual and special meeting shall be compiled at
least ten days before such meeting by the officer or agent having charge
of the transfer books for shares of stock of the Corporation. Such list
shall be compiled in alphabetical order with the address of and the
number of shares held by each shareholder, and the list shall be kept on
file at the registered office of the Corporation for a period, beginning
at least ten days prior to such meeting and ending on the date of such
meeting. Such list shall be open to inspection by any shareholder for
such period during usual business hours. Such list also shall be
produced and kept open at the time and place of such meeting and shall
be subject to the inspection of any shareholder during this meeting.
The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to
examine such list or share ledger or transfer books, or to vote any
- 2 -
<PAGE>
<PAGE>
meeting of shareholders. Failure to comply with the requirements of
this section shall not affect the validity of any action taken at such
meeting.
Section 11. Proxies. A shareholder may, at any annual or special
--------------------
meeting, vote either in person or by proxy executed in writing by the
shareholder or his duly authorized attorney in fact. Such proxy shall
be filed with the Secretary of the Corporation before or at the time of
the meeting. No proxy shall be valid after eleven months from the date
of execution unless otherwise provided in the proxy.
Section 12. Organization. The Chairman of the Board, and in his
-------------------------
absence, the Chief Executive Officer or the President, and in the
absence of both the Chairman of the Board and the Chief Executive
Officer or the President, any Vice-President chosen by the shareholders
present, shall preside at each meeting of shareholders and shall act as
chairman thereof. The Secretary, and in his absence the Assistant
Secretary, and in the absence of both the Secretary and the Assistant
Secretary, a Secretary pro tem, chosen by the shareholders present,
shall act as Secretary of all meetings of the shareholders.
Section 13. Adjournment. If at any meeting of the shareholders a
------------------------
quorum shall fail to attend at the time and place for which the meeting
was called or if the business of such meeting shall not be completed,
the shareholders present in person or represented by proxy may, by a
majority vote, adjourn the meeting from day to day or from time to time,
not exceeding ninety (90) days from such adjournment without further
notice until a quorum shall attend or the business thereof shall be
completed. At any such adjourned meeting any business may be transacted
which might have been transacted at the meeting as originally called.
Section 14. Notice of Shareholder Business and Nominations.
-----------------------------------------------------------
(A) Annual Meetings of Shareholders. (1) Nominations of persons
-------------------------------
for election to the Board of Directors of the Corporation and the proposal
of business to be considered by the shareholders may be made at an annual
meeting of shareholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
shareholder of the Corporation who was a shareholder of record at the time
of giving of notice provided for in this By-law, who is entitled to vote at
the meeting and who has complied with the notice procedures set forth in
this By-law.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c) of
paragraph (A)(1) of this By-law, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 30 days or delayed by more than 60
days from such anniversary date, notice by the shareholder to be timely
must be so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date
- 3 -
<PAGE>
<PAGE>
of such meeting is first made by the Corporation. Such shareholder's
notice shall set forth: (a) as to each person whom the shareholder proposes
to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal
is made; and (c) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i) the
name and address of such shareholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares
of the Corporation that are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-law to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all of
the nominees for director or specifying the size of the increased Board of
Directors made by the Corporation at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's notice
required by this By-law also shall be considered timely, but only with
respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is made by the
Corporation.
(B) Special Meetings of Shareholders. Only such business shall be
--------------------------------
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of shareholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction
of the Board of Directors or (b) by any shareholder of the Corporation who
is a shareholder of record at the time of giving of notice provided for in
this By-law, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this By-law. Nominations by
shareholders of persons for election to the Board of Directors may be made
at such a special meeting of shareholders if the shareholder's notice
required by paragraph (A)(2) of this By-law shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier
than the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special
meeting or the 10th day following the day on which public announcement is
first made of the date of the special meeting and of the nominees proposed
by the Board of Directors to be elected at such meeting.
(C) General. (1) Only such persons who are nominated in
-------
accordance with the procedures set forth in this By-law shall be eligible
to serve as directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-law. Except as
otherwise provided by law, the
- 4 -
<PAGE>
<PAGE>
Articles of Incorporation or these By-laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this By-law and, if any proposed
nomination or business is not in compliance with this By-law, to declare
that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law,
a shareholder also shall comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-law. Nothing in this By-law shall be deemed
to affect any rights (i) of shareholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of Preferred Stock to
elect directors under specified circumstances.
ARTICLE IV - DIRECTORS
----------------------
Section 1. Powers of the Board. The business of the Corporation
-------------------------------
shall be managed by its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not
by statute or by the Articles of Incorporation or by these By-Laws directed
or required to be exercised or done by the shareholders.
Section 2. Composition of the Board of Directors. The affairs and
-------------------------------------------------
business of the Corporation shall be managed by the Board of Directors,
whose number shall be not less than six nor more than 24. The directors
shall be divided, with respect to the time for which they severally hold
office, into three classes, as nearly equal in size as possible, with the
term of office of Class I directors to expire at the 2001 annual meeting of
shareholders, the term of office of Class II directors to expire at the
1999 annual meeting of shareholders and the term of office of Class III
directors to expire at the 2000 annual meeting of shareholders, with each
director to hold office until his or her successor shall have been duly
elected and qualified. At each meeting of shareholders, (i) directors
elected to succeed those directors whose terms then expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
shareholders after their election, with each director to hold office until
his or her successor shall have been duly elected and qualified, and
(ii) if authorized by a resolution of the Board of Directors, directors may
be elected to fill any vacancy on the Board of Directors, regardless of how
such vacancy shall have been created.
ARTICLE V - MEETING OF THE BOARD
--------------------------------
Section 1. Place of Meeting. Meetings of the Board of Directors of
----------------------------
the Corporation, both regular and special, may be held at any place either
within or without the State of Missouri, and unless otherwise designated as
herein provided, shall be held at the office of the Corporation.
- 5 -
<PAGE>
<PAGE>
Section 2. First Meeting of New Board. The first meeting of each
--------------------------------------
newly elected Board of Directors for the purpose of electing officers and
transacting such other business as may come before the meeting shall be
held immediately after the final adjournment of the annual meeting of the
shareholders. No notice of such annual meeting of Directors need be given,
provided a quorum shall be present. If, for any reason, such meeting of
the Directors is not or cannot be held as herein prescribed, the officers
may be elected at any meeting of the Directors thereafter called for such
purpose pursuant to these By-Laws.
Section 3. Regular Meetings. Regular meetings of the Board of
----------------------------
Directors may be held at such time and place as shall from time to time be
determined by resolution of the Board.
Section 4. Notice of Regular Meetings. After the time and place of
--------------------------------------
regular meetings shall have been determined, no notice of any regular
meetings need be given. Notice of any change in the place of holding any
regular meeting or any adjournment of a regular meeting shall be given by
mail or telegram not less than forty-eight (48) hours before such meeting,
to all Directors who were absent at the time such action was taken.
Section 5. Special Meetings. Special meetings of the Board for any
----------------------------
purpose or purposes may be called by the Chairman of the Board or President
on three (3) days' notice to each Director either personally or by mail or
by telegram. Upon like notice, the Secretary of the Corporation, upon the
written request of a majority of the Directors, shall call a special
meeting of the Board. Such request shall state the purpose or purposes of
the proposed meeting. The officer calling the special meeting may
designate the place for holding same.
Section 6. Quorum. At all meetings of the Board, a majority of the
------------------
Directors shall constitute a quorum for the transaction of business and the
act of a majority of the Directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors, except where otherwise
provided by law or by these By-Laws. If a quorum shall not be present at
any meeting of the Board of Directors, the Directors present thereat may
adjourn the meeting from time to time without notice other than
announcement at the meeting until a quorum shall be present.
Section 7. Waiver of Notice. Any Director may waive notice of any
----------------------------
meeting of the Board by a writing signed by him either before or after the
time of such meeting. A copy of such waiver shall be entered in the
minutes and shall be deemed to be the notice required by law or by these
By-Laws. Any Director present in person at any meeting of the Board shall
be deemed to have thereby waived notice of such meeting except where a
Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 8. Informal Meetings. Whenever the vote of Directors at a
-----------------------------
meeting thereof is required or permitted to be taken in connection with any
corporate action by any provisions of the statutes or of the Articles of
Incorporation, the meeting, any notice thereof, and vote of Directors
thereat may be dispensed with if all the Directors who would have been
entitled to vote
- 6 -
<PAGE>
<PAGE>
upon the action if such meeting were held shall consent in writing to such
corporate action being taken. Such written consent shall be filed with the
minutes of the Board.
Section 9. Compensation. Unless otherwise restricted by the
------------------------
Articles of Incorporation or these By-laws, the Board of Directors shall
have the authority to fix the compensation of Directors. The Directors may
be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of
the Board of Directors or a stated salary as Director. No such payment
shall preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Presumption of Assent. A Director of the Corporation
----------------------------------
shall be presumed to have assented to the action taken on any corporate
matter at a Board of Directors meeting at which he is present, unless his
dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the Secretary of the meeting
before the adjournment thereof or shall forward such dissent by certified
mail to the Secretary of the Corporation immediately after the adjournment
of the meeting. A Director who voted in favor of such action may not so
dissent.
Section 11. Vacancies. All vacancies in the office of Directors
----------------------
shall be filled by election by the shareholders, except as herein provided.
Vacancies not exceeding one-third (1/3) of the whole number of the Board
may be filled by the affirmative vote of the majority of the Directors then
in office, and the Directors so elected may hold office until such
vacancies are filled by the shareholders at a special or annual meeting.
Section 12. Organization. The Chairman of the Board, and in his
-------------------------
absence, the Chief Executive Officer or the President, and in the absence
of the Chairman of the Board and the Chief Executive Officer or the
President, a Chairman pro tem, chosen by the Directors present shall
preside at each meeting of the Directors and shall act as Chairman thereof.
The Secretary, and in his absence, the Assistant Secretary, and in the
absence of the Secretary and the Assistant Secretary, a Secretary pro tem,
chosen by the Directors present shall act as Secretary of all meetings of
the Directors.
Section 13. Minutes and Statements. The Board of Directors shall
-----------------------------------
cause to be kept a complete record of their meetings and acts, and of the
proceedings of the shareholders.
ARTICLE VI - COMMITTEES
-----------------------
Section 1. Executive Committee. The Board of Directors, by
-------------------------------
resolution adopted by a majority of the whole Board, may designate two or
more Directors to constitute an Executive Committee, which committee shall
have and exercise all of the authority of the Board of Directors in the
management of the Corporation, but the designation of the committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed on him by
law, by the Articles of Incorporation or by these By-Laws. The Executive
Committee shall keep a complete record of its activities and regularly
- 7 -
<PAGE>
<PAGE>
report them to the Board of Directors at every meeting thereof. All action
taken by the Executive Committee shall be subject to revision, alteration
or change by the Board of Directors, provided that rights of third persons
shall not be affected thereby.
Section 2. Meetings of the Executive Committee. A majority of the
-----------------------------------------------
Executive Committee shall constitute a quorum for the transaction of
business. The Executive Committee may determine the time and place for its
meetings, the notice necessary therefor and its rules of procedure.
Section 3. Other Committees. The Board of Directors shall have the
----------------------------
power to establish and designate, by resolution passed by a majority of the
Board of Directors, such other committees as it shall deem appropriate or
expedient for the furtherance of the objectives and purposes of the
Corporation and to delegate to such committees those powers which, in its
discretion, it feels are necessary and desirable. A majority of the
members of any such committee shall constitute a quorum thereof and no acts
of any such committee shall be valid unless proved by the affirmative vote
or consent of the majority of such committee constituting a quorum at any
such meeting. Any such committee shall keep regular minutes of its
proceedings and shall report the same to the Board of Directors from time
to time. Any such committee shall meet whenever necessary upon three days'
prior written notice to all members thereof.
ARTICLE VII - OFFICERS
----------------------
Section 1. Officers. The permitted officers of this Corporation
--------------------
will include a Chairman of the Board, the Chief Executive Officer, the
President, one or more Vice Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer, and one or more Assistant Treasurers, all of whom
shall be chosen by the Board of Directors. Any person may hold two or more
offices.
Section 2. Subordinate Officers and Employees. The Board of
----------------------------------------------
Directors may appoint such other officers and agents as it may deem
necessary who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to
time by the Board.
Section 3. Compensation. The Board of Directors shall from time to
------------------------
time, in its discretion, fix or alter the compensation of any officer or
agent.
Section 4. Bond. The Directors shall direct and require good and
----------------
sufficient fidelity bonds on all active officers and employees, whether or
not they draw salary or compensation, which bonds shall provide for
indemnity to the Corporation on account of any losses sustained by it as
the result of any dishonest, fraudulent or criminal act or omission
committed or omitted by them acting independently or in collusion or
combination with any person or persons. The bonds may be individual,
schedule or blanket form, and the premiums therefor may be paid by the
Corporation.
- 8 -
<PAGE>
<PAGE>
Section 5. Tenure of Office and Removal. The officers of the
----------------------------------------
Corporation shall hold office until their successors are chosen and
qualify. Any officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board shall
---------------------------------
provide overall direction and guidance to the Corporation. He or she shall
preside at all meetings of the shareholders and of the Board of Directors.
The Chairman shall in general perform all duties incident to the office of
Chairman of the Board and such other duties as may be prescribed by the
Board of Directors from time to time.
Section 7. Chief Executive Officer. The Chief Executive Officer
-----------------------------------
shall have the primary responsibility for and the general control and
management of all of the business and affairs of the Corporation, under the
direction of the Board of Directors. He shall have power to select and
appoint all necessary officers and employees of the Corporation except such
officers as under these By-Laws are to be elected by the Board of
Directors, to remove all appointed officers or employees whenever he shall
deem necessary, and to make new appointments to fill the vacancies. He
shall have the power of suspension from office for cause of any elected
officer, which shall be forthwith declared in writing to the Board of
Directors. Whenever in his opinion it may be necessary, he shall define
the duties of any officer or employee of the Corporation which are not
prescribed in these By-Laws or by resolution of the Board of Directors. He
also shall be an Assistant Secretary and shall have such other authority
and shall perform such other duties as may be assigned to him by the Board
of Directors.
Section 8. President. The President (if one shall have been elected
---------------------
by the Board of Directors) shall have such powers and discharge such duties
as may be assigned to him from time to time by the Board of Directors, the
Chairman of the Board or the senior officer to whom he reports. If the
office of Chairman of the Board and Chief Executive Officer is held by
another person, the President shall be the chief operating officer of the
Corporation. He also shall be an Assistant Secretary and shall have such
other authority and shall perform such other duties as may be assigned to
him by the Board of Directors.
Section 9. Vice-President. The Vice-Presidents, if any, in the
--------------------------
order designated by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of
the President and shall perform such other duties and have such other
powers as the Board of Directors, Chairman of the Board, the Chief
Executive Officer or the President may from time to time prescribe.
Section 10. The Secretary. The Secretary shall attend all meetings
--------------------------
of the shareholders of the Corporation and of the Board of Directors and
shall record all of the proceedings of such meetings in minute books kept
for that purpose. He shall keep in safe custody the corporate seal of the
Corporation and is authorized to affix the same to all instruments requiring
the Corporation's seal. He shall have charge of the corporate records, and,
except to the extent authority may be conferred upon any transfer agent or
registrar duly appointed by the Board of
- 9 -
<PAGE>
<PAGE>
Directors, he shall maintain the Corporation's books, registers, stock
certificate and stock transfer books and stock ledgers, and such other
books, records and papers as the Board of Directors may from time to time
entrust to him. He shall give or cause to be given proper notice of all
meetings of shareholders and Directors as required by law and the By-Laws,
shall, with the President or a Vice-President, sign the stock certificates
of the Corporation, and shall perform such other duties as may from time to
time be prescribed by the Board of Directors, Chairman of the Board, the
Chief Executive Officer or the President.
Section 11. The Assistant Secretary. Each Assistant Secretary, if
------------------------------------
any, shall assist the Secretary in the performance of his duties, and may
at any time perform any of the duties of the Secretary; in case of the
death, resignation, absence or disability of the Secretary, the duties of
the Secretary shall be performed by an Assistant Secretary, and each
Assistant Secretary shall have such other powers and perform such other
duties as, from time to time, may be assigned to him by the Board of
Directors.
Section 12. Treasurer. The Treasurer, if any, shall have the
----------------------
custody of the corporate funds and securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation, and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board and Directors
at the regular meetings of the Board, or whenever they may require it, an
account of all his transactions as Treasurer, and of the financial
condition of the Corporation.
Section 13. The Assistant Treasurer. Each Assistant Treasurer, if
------------------------------------
any, shall assist the Treasurer in the performance of his duties, and may
at any time perform any of the duties of the Treasurer; in case of the
death, resignation, absence or disability of the Treasurer, the duties of
the Treasurer shall be performed by an Assistant Treasurer, and each
Assistant Treasurer shall have such other powers and perform such other
duties as, from time to time, may be assigned to him by the Board of
Directors.
ARTICLE VIII - RESIGNATIONS
---------------------------
Any Director or officer may resign his office at any time, such
resignation to be made in writing and to take effect from the time of its
receipt by the Corporation, unless some different time be fixed in the
resignation, and then from that time. The acceptance of a resignation
shall not be required to make it effective.
ARTICLE IX - CERTIFICATES OF STOCK AND TRANSFERS
------------------------------------------------
Section 1. Form and Execution of Certificate. The Board of
---------------------------------------------
Directors shall prescribe the form of the certificates of stock of the
Corporation. The certificates shall be signed by the Chairman of the
Board, the Chief Executive Officer or President and by the Secretary or
Assistant Secretary and shall be sealed with the seal of the Corporation
and all be numbered consecutively. The name of the owner of the
certificates of stock, number of shares of stock
- 10 -
<PAGE>
<PAGE>
represented thereby, and the date of issue shall be recorded on the books
of the Corporation. The persons who may own stock of the corporation and
the number of shares which may be owned by any such persons are restricted
in accordance with the Articles of Incorporation.
Section 2. Transfer of Shares. Shares of stock may be transferred
------------------------------
by endorsement thereon of the signature of the proprietor, his agent,
attorney or legal representative and the delivery of the certificate; but
such transfer shall not be valid against the Corporation until the same is
so entered on the books of the Corporation and the old certificate is
surrendered for cancellation.
Section 3. Record Owner. The Corporation shall be entitled to
------------------------
treat the person in whose name any shares of stock is registered as owner
thereof for the following purposes: capitalization, consolidation, merger,
reorganization, sale of assets, liquidation or otherwise; for votes,
approvals and consents by shareholders; for notice to the shareholders; and
for all other purposes whatever. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the
part of any other person, whether or not the Corporation shall have notice
thereof, except as expressly required by the law or these By-Laws.
Section 4. Closing of Stock Transfer Books - Fixing Record Date.
----------------------------------------------------------------
The Board of Directors shall have power to close the stock transfer books
of the Corporation for a period not exceeding fifty (50) days preceding the
date of any meeting of shareholders, or the date for payment of any
dividend, or the date for the allotment of rights, or the date when any
change, conversion, or exchange of capital stock shall go into effect;
provided, however, that in lieu of closing the stock transfer books as
aforesaid, the Board of Directors may fix in advance a date, not exceeding
fifty (50) days preceding the date of any meeting of shareholders, or the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, as a record date for the determination of the
shareholders entitled to notice of, and to vote at any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend or
to any such allotment of ,rights, or to exercise the rights in respect of
any such change, conversion or exchange of capital stock, and in such case
such shareholders and only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of, and to vote at
such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment or rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as aforesaid.
Section 5. Lost, Mutilated or Destroyed Stock Certificates. Upon
-----------------------------------------------------------
presentation to the Corporation of a proper affidavit attesting the loss,
destruction or mutilation of any certificate or shares of stock to the
Corporation, the Board of Directors may direct the issuance of a new
certificate in lieu of and to replace the certificate so alleged to be
lost, destroyed or mutilated. The Board of Directors may require as a
condition precedent to the issuance of a new certificate any or all of the
following:
(a) Additional evidence of the loss, destruction or mutilation
claimed;
- 11 -
<PAGE>
<PAGE>
(b) Advertisement of the loss in such manner that the Board of
Directors may direct or approve;
(c) A bond or agreement of indemnity in such form and amount, with
or without such sureties as the Board of Directors may
approve; or
(d) The order or approval of a Court. The Corporation may
recognize the person in whose name the new certificate, or any
certificate thereafter is issued as owner of the shares
described therein for all purposes until the owner of the
original certificate or transferee thereof without notice and
for value shall enjoin the Corporation and the holder of any
new certificate, or any certificate issued in exchange or
substitution therefrom, from so acting.
Section 6. Transfer Agent and Register. The Board of Directors may
---------------------------------------
appoint a transfer agent and/or a registrar of transfers and may require
all certificates of shares to bear the signature of such transfer agent and
of such registrar of transfers, or as the Board of Directors may otherwise
direct.
Section 7. Regulations. The Board of Directors shall have the
-----------------------
power and authority to make all rules and regulations as the Board of
Directors shall deem expedient regulating in the issue, transfer, and
registration of certificates for shares in this Corporation.
Section 8. Transfer Book. Transfer books shall be maintained under
-------------------------
the direction of the Secretary, showing the ownership and transfer of all
certificates of stock issued by the Corporation.
ARTICLE X - DEALINGS WITH COMPANIES IN WHICH
--------------------------------------------
DIRECTORS MAY HAVE AN INTEREST
------------------------------
Inasmuch as the Directors of this Corporation are or may be persons
of diversified business interests, and likely to be connected with other
corporations with which from time to time this Corporation may have
business dealings, no contract or other transaction between this
Corporation and any other corporation shall be affected by the fact that
Directors of this Corporation are interested in, or are directors or
officers of such other corporation.
ARTICLE XI - MISCELLANEOUS PROVISIONS
-------------------------------------
Section 1. Fiscal Year. The fiscal year of the Corporation shall
-----------------------
be determined by the Board of Directors.
Section 2. Inspection of Books. The Directors shall determine from
-------------------------------
time to time whether, and, if allowed, when and tinder what conditions and
regulations the accounts and books of the Corporation (except such as may
by statute be specifically open to inspection) or any of them shall be open
to inspection of the shareholders, and shareholders' rights in this respect
are and shall be restricted and limited accordingly.
- 12 -
<PAGE>
<PAGE>
Section 3. Checks and Notes. All checks and drafts on the
----------------------------
Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other-instruments for the payment of
money, shall be signed by such officer or officers or agent or agents as
shall be thereunto duly authorized from time to time by the Board of
Directors; provided, that checks drawn on the Corporation's payroll,
dividend and special accounts may bear the facsimile signatures, affixed
thereto by a mechanical device, of such officers or agents as the Board of
Directors may authorize.
Section 4. Contracts. The Board of Directors may authorize any
---------------------
officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation,
and such authority may be general or confined to specific instances.
Section 5. Loans. No material loans shall be contracted on behalf
-----------------
of the Corporation and no material evidences of indebtedness shall be
issued in its name unless authorized by resolution of the Board of
Directors. Such authority may be general or confined to specific instances.
Section 6. Dividends. The Board of Directors may declare such
---------------------
dividends as they in their discretion see fit whenever the condition of the
Corporation, in their opinion, shall warrant the same. The Board may
declare dividends in cash, in property or in capital stock.
Section 7. Notices. Whenever, under the provisions of these By-
-------------------
Laws notice is required to be given to any Director, officer or
shareholder, it shall not be construed to mean personal notice, but such
notice may be given in writing by depositing the same in the post office or
letter box, in a postpaid sealed wrapper addressed to such shareholder,
officer or Director at such address as appears on the records of the
Corporation, and such notice shall be deemed to be given at the time when
the same shall be thus mailed.
ARTICLE XII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
-------------------------------------------------------
Each Director and each officer, and his heirs, executors and
administrators, shall be indemnified by Corporation against any costs and
expenses, including counsel fees, reasonably incurred in connection with
any civil, criminal, administrative or other claim, action, suit or
proceeding in which he or they may become involved or with which he or they
may be threatened by reason of his being or having been a Director or
officer of the Corporation, and against any payments in settlement of any
such claim, action, suit or proceeding or in satisfaction of any related
judgment, fine or penalty, except costs, expenses or payments in relation
to any matter as to which he shall be finally adjudged derelict in the
performance of his duties to the Corporation, or in relation to any matter
as to which there has been no adjudication with respect to his performance
of his duties to the Corporation unless the Corporation shall receive an
Opinion from independent counsel that the Director or officer has not been
so derelict. In the case of a criminal action, suit or proceeding, a
conviction or judgment (whether after trial or based on a plea of guilty or
nolo contendere or its equivalent) shall not be deemed an adjudication that
the Director or officer was derelict in the performance of his duties to
the Corporation if he acted in good faith in what he considered to be the
best interests of the Corporation and with no
- 13 -
<PAGE>
<PAGE>
reasonable cause to believe the action was illegal. The foregoing right of
indemnification shall not be exclusive of other rights to which Directors
or officers may be entitled as a matter of law or otherwise.
ARTICLE XIII - AMENDMENTS
-------------------------
At any annual, regular or special meeting of the shareholders or of
the Board of Directors, the shareholders or Board of Directors may repeal
or amend these By-Laws or any part thereof or adopt new or additional By-
Laws.
ARTICLE XIV - SHAREHOLDERS' AGREEMENT
-------------------------------------
Notwithstanding anything contained herein to the contrary, the
provisions of these By-Laws shall be subject and subordinate to the
provisions of any shareholders' agreement to which the Corporation is a
party, which in the case of a conflict, shall control.
- 14 -
<PAGE>
===========================================================
JUNIOR SUBORDINATED INDENTURE
Between
ALLEGIANT BANCORP, INC.
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
August 2, 1999
===========================================================
<PAGE>
<PAGE>
ALLEGIANT CAPITAL TRUST I
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Junior Subordinated
Act Section Indenture Section
----------- -----------------
Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
Section 311 (a) 6.13
(b) 6.13
(b)(2) 7.3(a)
Section 312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
Section 313 (a) 7.3(a)
(a)(4) 7.3(a)
(b) 7.3(b)
(c) 7.3(a)
(d) 7.3(c)
Section 314 (a) 7.4
(b) 7.4
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(e) 1.2
Section 315 (a) 6.1(a)
(b) 6.2, 7.3
(c) 6.1(b)
(d) 6.1(c)
(e) 5.14
Section 316 (a) 5.12
(a)(1)(A) 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4(f)
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
<PAGE>
<TABLE>
TABLE OF CONTENTS
<C> <S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
Section 1.1. Definitions 1
Section 1.2. Compliance Certificate and Opinions 10
Section 1.3. Forms of Documents Delivered to Trustee 10
Section 1.4. Acts of Holders 11
Section 1.5. Notices, Etc. to Trustee and Company 13
Section 1.6. Notice to Holders 13
Section 1.7. Conflict with Trust Indenture Act 13
Section 1.8. Effect of Headings and Table of Contents 13
Section 1.9. Successors and Assigns 13
Section 1.10. Separability Clause 14
Section 1.11. Benefits of Indenture 14
Section 1.12. Governing Law 14
Section 1.13. Non-Business Days 14
ARTICLE II SECURITY FORMS 15
Section 2.1. Forms Generally 15
Section 2.2. Form of Face of Security 15
Section 2.3. Form of Reverse of Security 18
Section 2.4. Additional Provisions Required in Global Security 21
Section 2.5. Form of Trustee's Certificate of Authentication 21
ARTICLE III THE SECURITIES 21
Section 3.1. Title and Terms 21
Section 3.2. Denominations 22
Section 3.3. Execution, Authentication, Delivery and Dating 22
Section 3.4. Temporary Securities 23
Section 3.5. Global Securities 24
Section 3.6. Registration, Transfer and Exchange Generally; Certain Transfers
and Exchanges; Securities Act Legends 25
Section 3.7. Mutilated, Lost and Stolen Securities 26
Section 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved 26
Section 3.9. Persons Deemed Owners 27
Section 3.10. Cancellation 28
Section 3.11. Computation of Interest 28
Section 3.12. Deferrals of Interest Payment Dates 28
Section 3.13. Right of Set-Off 29
Section 3.14. Agreed Tax Treatment 29
Section 3.15. CUSIP Numbers 30
Section 3.16. Shortening of Stated Maturity 30
ARTICLE IV SATISFACTION AND DISCHARGE 30
Section 4.1. Satisfaction and Discharge of Indenture 30
Section 4.2. Application of Trust Money 31
- i -
<PAGE>
<PAGE>
ARTICLE V REMEDIES 31
Section 5.1. Events of Default 31
Section 5.2. Acceleration of Maturity; Rescission and Annulment 32
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee 33
Section 5.4. Trustee May File Proofs of Claim 33
Section 5.5. Trustee May Enforce Claim Without Possession of Securities 34
Section 5.6. Application of Money Collected 34
Section 5.7. Limitation on Suits 35
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Preferred Securities 35
Section 5.9. Restoration of Rights and Remedies 36
Section 5.10. Rights and Remedies Cumulative 36
Section 5.11. Delay or Omission Not Waiver 36
Section 5.12. Control by Holders 36
Section 5.13. Waiver of Past Defaults 37
Section 5.14. Undertaking for Costs 37
Section 5.15. Waiver of Usury, Stay or Extension Laws 37
ARTICLE VI THE TRUSTEE 38
Section 6.1. Certain Duties and Responsibilities 38
Section 6.2. Notice of Defaults 38
Section 6.3. Certain Rights of Trustee 39
Section 6.4. Not Responsible for Recitals or Issuance of Securities 40
Section 6.5. May Hold Securities 40
Section 6.6. Money Held in Trust 40
Section 6.7. Compensation and Reimbursement 40
Section 6.8. Disqualification; Conflicting Interests 41
Section 6.9. Corporate Trustee Required; Eligibility 41
Section 6.10. Resignation and Removal; Appointment of Successor 42
Section 6.11. Acceptance of Appointment by Successor 43
Section 6.12. Merger, Conversion, Consolidation or Succession to Business 43
Section 6.13. Preferential Collection of Claims Against Company 43
Section 6.14. Appointment of Authenticating Agent 44
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE, PAYING AGENT AND COMPANY 45
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders 45
Section 7.2. Preservation of Information, Communications to Holders 45
Section 7.3. Reports by Trustee and Paying Agents 45
Section 7.4. Reports by Company 46
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 46
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms 46
Section 8.2. Successor Company Substituted 47
ARTICLE IX SUPPLEMENTAL INDENTURES 48
Section 9.1. Supplemental Indentures Without Consent of Holders 48
Section 9.2. Supplemental Indentures with Consent of Holders 49
- ii -
<PAGE>
<PAGE>
Section 9.3. Execution of Supplemental Indentures 49
Section 9.4. Effect of Supplemental Indentures 50
Section 9.5. Conformity with Trust Indenture Act 50
Section 9.6. Reference in Securities to Supplemental Indentures 50
ARTICLE X COVENANTS 50
Section 10.1. Payment of Principal, Premium and Interest 50
Section 10.2. Maintenance of Office or Agency 50
Section 10.3. Money for Security Payments to be Held in Trust 51
Section 10.4. Statement as to Compliance 52
Section 10.5. Waiver of Certain Covenants 52
Section 10.6. Additional Sums 52
Section 10.7. Additional Covenants 53
Section 10.8. Federal Tax Reports 54
ARTICLE XI REDEMPTION OF SECURITIES 54
Section 11.1. Applicability of this Article 54
Section 11.2. Election to Redeem; Notice to Trustee 54
Section 11.3. Selection of Securities to be Redeemed 54
Section 11.4. Notice of Redemption 55
Section 11.5. Deposit of Redemption Price 55
Section 11.6. Payment of Securities Called for Redemption 56
Section 11.7. Right of Redemption of Securities Initially Issued to the
Issuer Trust 56
ARTICLE XII SINKING FUNDS 56
ARTICLE XIII SUBORDINATION OF SECURITIES 57
Section 13.1. Securities Subordinate to Senior Indebtedness 57
Section 13.2. No Payment When Senior Indebtedness in Default; Payment Over of
Proceeds Upon Dissolution, Etc. 57
Section 13.3. Payment Permitted if No Default 58
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness 58
Section 13.5. Provisions Solely to Define Relative Rights 59
Section 13.6. Trustee to Effectuate Subordination 59
Section 13.7. No Waiver of Subordination Provisions 59
Section 13.8. Notice to Trustee 60
Section 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent 60
Section 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness 61
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights 61
Section 13.12. Article Applicable to Paying Agents 61
Section 13.13. Certain Conversions or Exchanges Deemed Payment 61
</TABLE>
- iii -
<PAGE>
<PAGE>
JUNIOR SUBORDINATED INDENTURE
______________________
THIS JUNIOR SUBORDINATED INDENTURE, dated as of August 2, 1999
between ALLEGIANT BANCORP, INC., a Missouri corporation (the "Company"),
having its principal office at 2122 Kratky Road, St. Louis, Missouri
63114 and BANKERS TRUST COMPANY, as Trustee, having its principal office
at Four Albany Street, 4th Floor, New York, New York 10006 (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its unsecured
junior subordinated deferrable interest debentures due August 2,
2029 (the "Securities") of substantially the tenor hereinafter provided,
including Securities issued to evidence loans made to the Company from
the proceeds from the issuance from time to time by Allegiant Capital
Trust I, a Delaware business trust (the "Issuer Trust"), of undivided
preferred beneficial interests in the assets of such Issuer Trust (the
"Preferred Securities") and common undivided interests in the assets of
such Issuer Trust (the "Common Securities" and, collectively with the
Preferred Securities, the "Trust Securities"), and to provide the terms
and conditions upon which the Securities are to be authenticated, issued
and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as such term is defined in Section 1.1
hereof) thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, and intending to
be legally bound hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I 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) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
<PAGE>
<PAGE>
(d) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles as in effect at the time of computation;
(e) whenever the context may require, any gender shall be
deemed to include the other;
(f) 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 Indenture; and
(g) the words "hereby", "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"25% Capital Limitation" means the limitation imposed by the
Federal Reserve that the proceeds of certain qualifying securities
similar to the Trust Securities will qualify as Tier 1 capital of the
Company up to an amount not to exceed, when taken together with all
cumulative preferred stock of the Company, if any, 25% of the Company's
Tier 1 capital, or any subsequent limitation adopted by the Federal
Reserve.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities the payment of which has not
been made on the applicable Interest Payment Date and which shall accrue
at the rate per annum specified or determined as specified in such
Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which the Issuer Trust has become subject from
time to time as a result of a Tax Event.
"Administrator" means, in respect of the Issuer Trust, each
Person appointed in accordance with the Trust Agreement, solely in such
Person's capacity as Administrator of the Issuer Trust and not in such
Person's individual capacity, or any successor Administrator appointed
as therein 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.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein,
the rules and procedures of the Depositary for such Global Security, in
each case to the extent applicable to such transaction and as in effect
from time to time.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities.
"Board of Directors" means the board of directors of the
Company or the executive committee of the board of directors of the
Company (or any other committee of the board of directors of the Company
- 2 -
<PAGE>
<PAGE>
performing similar functions) or, for purposes of this Indenture, a
committee designated by the board of directors of the Company (or such
committee), comprised of two or more members of the board of directors
of the Company or officers of the Company, or both.
"Board Resolution" means a copy of a resolution certified by
the Secretary or any Assistant Secretary of the Company to have been
duly adopted by the Board of Directors, or such committee of the Board
of Directors or officers of the Company to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in the State of Missouri
or the City of New York are authorized or required by law or executive
order to remain closed, or (c) a day on which the Corporate Trust Office
of the Trustee, or, with respect to the Securities initially issued to
the Issuer Trust, the "Corporate Trust Office" (as defined in the Trust
Agreement) of the Property Trustee or the Delaware Trustee under the
Trust Agreement, is closed for business.
"Capital Treatment Event" means the receipt by the Company and
the Issuer Trust of an Opinion of Counsel, rendered by counsel
experienced in such matters, to the effect that, as a result of the
occurrence of any amendment to, or change (including any announced
prospective change) in, the laws (or any rules or 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
pronouncement, action or decision is announced on or after the date of
the issuance of the Preferred Securities of the Issuer Trust, there is
more than an insubstantial risk that the Company will not be entitled to
treat an amount equal to the Liquidation Amount of such Preferred
Securities as "Tier 1 Capital" (or the then equivalent thereof), except
as otherwise restricted under the 25% Capital Limitation, for purposes
of the risk-based capital adequacy guidelines of the Federal Reserve
Board, as then in effect and applicable to the Company. The Company or the
Issuer Trust must request an Opinion of Counsel with regard to such
matter within a reasonable period of time after the Company or the Issuer
Trust, as appropriate, becomes aware of the possible occurrence of any
such event.
The Company or the Issuer Trust must request and receive an
Opinion of Counsel with regard to the matter deemed to be an event
within a reasonable period of time after the Company or the Issuer
Trust, as appropriate, becomes aware of the possible occurrence of any
such event.
"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 on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock, $0.01 par value per
share, of the Company.
"Company" means the Person named as the "Company" in the
preamble of this instrument until a successor entity shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor entity.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by its
Chairman of the Board of Directors, its Chief Executive
- 3 -
<PAGE>
<PAGE>
Officer, President or any Vice President, and by its Chief Financial
Officer, its Treasurer, its Secretary or any Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at
Four Albany Street, 4th Floor, New York, New York 10006.
"Creditor" has the meaning specified in Section 6.7.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to the Issuer Trust, the
Person identified as the "Delaware Trustee" in the Trust Agreement,
solely in its capacity as Delaware Trustee of the Issuer Trust under the
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware trustee appointed
as therein provided.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in the form of one or more Global Securities,
the Person (or any successor thereto) designated as Depositary by the
Company pursuant to Section 3.1.
"Discount Security" means any security that provides for an
amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Dollar" or "$" means the currency of the United States of
America that, as at the time of payment, is legal tender for the payment
of public and private debts.
The term "entity" includes a bank, corporation, association,
company, limited liability company, joint-stock company or business
trust.
"Event of Default," has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and
any successor statute thereto, in each case as amended from time to
time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means Board of Governors of the Federal
Reserve System.
"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of the Securities, issued to the
Depositary or its nominee, and registered in the name of such Depositary
or its nominee.
"Guarantee" means, with respect to the Issuer Trust, the
Guarantee Agreement, dated as of August 2, 1999, executed by the Company
for the benefit of the holders of the Preferred Securities issued by the
Issuer Trust as modified, amended or supplemented from time to time.
"Holder" means a Person in whose name a Security is registered
in the Securities Register.
- 4 -
<PAGE>
<PAGE>
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Institutional Accredited Investor" means an institutional
accredited investor within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of
1940 and any successor statute thereto, in each case as amended from
time to time.
"Investment Company Event" means the receipt by the Company and
the Issuer Trust of an Opinion of Counsel, rendered by counsel
experienced in such matters, to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Issuer
Trust is 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 the issuance of the Preferred
Securities.
The Company or the Issuer Trust must request and receive an
Opinion of Counsel with regard to the matter deemed to be an event
within a reasonable period of time after the Company or the Issuer
Trust, as appropriate, becomes aware of the possible occurrence of
any such event.
"Issuer Trust" has the meaning specified in the first recital
of this Indenture.
"Liquidation Amount" has the meaning assigned in the Trust
Agreement.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.1(c).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Chief Executive
Officer, President or a Vice President, and by the Chief Financial
Officer, Treasurer, an Associate Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Trustee. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement by each officer signing the Officers'
Certificate that such officer 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 such officer in rendering the
Officers' Certificate;
- 5 -
<PAGE>
<PAGE>
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with;
provided, however, that the Officers' Certificate delivered pursuant to
the provisions of Section 10.4 hereof shall comply with the provisions
of Section 314 of the Trust Indenture Act.
"Opinion of Counsel" means a written opinion of independent
outside counsel to the Company.
"Original Issue Date" means the date of issuance specified as
such in each Security.
"Outstanding" means, when used in reference to any Securities,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(c) Securities in substitution for or in lieu of other
Securities which have been authenticated and delivered or that have been
paid pursuant to Section 3.6, unless proof satisfactory to the Trustee
is presented that any such Securities are held by Holders in whose hands
such Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor (other
than, for the avoidance of doubt, the Issuer Trust to which Securities
were initially issued) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee
knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor (other than, for the
avoidance of doubt, the Issuer Trust). Upon the written request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of the Company, or any
other obligor on the Securities or any Affiliate of the Company or such
obligor (other than, for the avoidance of doubt, the Issuer Trust), and,
subject to the provisions of Section 6.1, the Trustee shall be entitled
to accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of (or premium, if any) or interest on,
or other amounts in respect of any Securities on behalf of the Company.
- 6 -
<PAGE>
<PAGE>
"Person" means any individual, partnership, trust,
unincorporated organization or Entity or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities, the
place or places where the principal of (and premium, if any) and
interest on the Securities are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security. For the purposes of this
definition, any security authenticated and delivered under Section 3.7
in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Securities" has the meaning specified in the first
recital of this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to the Issuer Trust, the
Person identified as the "Property Trustee" in the Trust Agreement,
solely in its capacity as Property Trustee of the Issuer Trust under the
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed
as therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities means, unless otherwise
provided pursuant to Section 3.1 with respect to the Securities, the
close of business on March 15, June 15, September 15 or December 15 next
preceding such Interest Payment Date (whether or not a Business Day).
"Responsible Officer", when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, director, vice president, assistant
vice president, associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of this Indenture, 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.
"Rights Plan" means any plan of the Company providing for the
issuance by the Company to all holders of its Common Stock, $0.01 par
value per share, of rights entitling the holders thereof to subscribe
for or purchase shares of any class or series of capital stock of the
Company which rights (a) are deemed to be transferred with such shares
of such Common Stock, (b) are not exercisable, and (c) are also issued
in respect of future issuances of such Common Stock, in each case until
the occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this
Indenture.
- 7 -
<PAGE>
<PAGE>
"Securities Act" means, the Securities Act of 1933 and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.6.
"Senior Indebtedness" means, the principal of, and premium and
interest on the following, whether outstanding on the date of execution
of this Indenture or thereafter incurred or created, whether recourse
is to all or a portion of the assets of the Company and whether or not
contingent,
(a) every obligation of the Company for money borrowed
(including purchase money obligations with an original term of more
than one year);
(b) every obligation of the Company evidenced by bonds,
debentures, notes or corporate debt securities other similar instruments,
including obligations incurred or assumed by the Company in connection
with the acquisition by the Company or any subsidiary of any property,
assets or businesses;
(c) every reimbursement obligation of the Company with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of the Company;
(d) every obligation of the Company issued or assumed
as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary
course of business);
(e) indebtedness or obligations of the Company as lessee
under any lease of real or personal property required to be capitalized
under generally accepted accounting principles at the time;
(f) every obligation of the Company for claims (as
defined in Section 101(4) of the United States Bankruptcy Code of 1978,
as amended) in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar
arrangements;
(g) any indebtedness in respect of debt securities
issued to any trust, or a trustee of such trust, partnership or other
entity affiliated with the Company that is a financing entity of the
Company in connection with the issuance by such financing entity of
securities that are similar to the Preferred Securities;
(h) indebtedness or obligations of the Company constituting
a guarantee of indebtedness or of obligations of others of the type
referred to in the preceding clauses (a) through (g);
(i) renewals, extensions or refundings of any of the
indebtedness or obligations referred to in the preceding clauses (a)
through (g); and
(j) every obligation of the type referred to in clauses
(a) through (i) of another person and all dividends of another person
the payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise.
Senior Indebtedness shall not include (a) any obligations
which, by their terms, are expressly stated to rank pari passu in right
of payment with, or to not be superior in right of payment to, the
Junior Subordinated Debentures, (b) any Senior Indebtedness of the
Company which when incurred and without respect to any election under
Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (c) any indebtedness of
the Company to any of its subsidiaries, (d) indebtedness, other than
indebtedness with respect to wages or bank deposits, payable to any
executive officer, director or employee of the Company, (e) any
indebtedness in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the
Company that is a financing entity of the Company in connection with the
issuance of such financing entity of securities that are similar to the
Preferred Securities, including the obligations associated with the
Preferred Securities, or (f) any indebtedness which by its terms is
subordinated to trade accounts payable or accrued liabilities arising
in the ordinary course of business to the extent that payments made
to the holders of such indebtedness by the Holders of the Securities
because of the Securities' subordination provisions exceed amounts
to which the obligees of such indebtedness would be entitled under the
subordination provisions to which such debt is entitled.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.8.
- 8 -
<PAGE>
<PAGE>
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified pursuant to the terms of such Security as the fixed date on
which the principal of such Security or such installment of principal or
interest is due and payable, as such date may, in the case of such
principal, be shortened or extended as provided pursuant to the terms of
such Security and this Indenture.
"Subsidiary" means an entity more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock"
means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section
3.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Tax Event" means the receipt by the Company and the Issuer
Trust of an Opinion of Counsel, rendered by 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 or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is
announced on or after the date of issuance of the Preferred Securities
of the Issuer Trust, there is more than an insubstantial risk that (a)
the Issuer Trust is, or will be within 90 days of the delivery of such
Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the Securities issued by the
Company to the Issuer Trust, (b) interest payable by the Company on the
Securities is not, or within 90 days of the delivery of such Opinion of
Counsel will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (c) the Issuer Trust is,
or will be within 90 days of the delivery of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges. The Company or the Issuer Trust must request and
receive an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Company or the Issuer Trust, as
appropriate, becomes aware of the possible occurrence of any such event.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of August 2, 1999, as amended, modified or
supplemented from time to time, among the trustees of the Issuer Trust
named therein, the Company, as depositor, and the holders from time to
time of undivided beneficial ownership interests in the assets of the
Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the
preamble of this Indenture, solely in its capacity as such and not in
its individual capacity, until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to any Securities shall mean the
Trustee with respect to such Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor
statute, in each case as amended from time to time, except as provided
in Section 9.5.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
- 9 -
<PAGE>
<PAGE>
"Vice President," when used with respect to the Company, means
any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(a) a statement by each individual signing such certificate
or opinion that such individual has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to matters upon
which his or her certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company,
- 10 -
<PAGE>
<PAGE>
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions, or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
Section 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him or her the execution thereof. Where such execution is by a Person
acting in other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her
authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the
same, may also be provided in any other manner that the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to
give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities, provided
that the Company may not set a record date for, and the provisions of
this Section 1.4(f) shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in
Section 1.4(g). If any record date is set pursuant to this Section
1.4(f), the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to take the relevant action, whether
or not such Holders remain Holders after such record date, provided,
however that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date (as defined below) by Holders
of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this Section 1.4(f) shall be construed to
prevent
- 11 -
<PAGE>
<PAGE>
the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this Section 1.4(f)
(whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in
this Section 1.4(f) shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record
date is set pursuant to this Section 1.4(f), the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities in the manner set forth in
Section 1.6.
(g) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to
join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.2, (iii) any
request to institute proceedings referred to in Section 5.7(b), or (iv)
any direction referred to in Section 5.12, in each case with respect to
Securities. If any record date is set pursuant to this Section 1.4(g),
the Holders of Outstanding Securities on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such
record date, provided, however that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on
such record date. Nothing in this Section 1.4(g) shall be construed to
prevent the Trustee from setting a new record date for any action for
which a record date has previously been set pursuant to this Section
1.4(g) (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect) and nothing
in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities in the manner set forth in
Section 1.6.
(h) With respect to any record date set pursuant to this
Section 1.4, the party hereto that sets such record date may designate
any day as the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later day, provided that no such
change shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each Holder
of Securities in the manner set forth in Section 1.6 on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party
hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date
as provided in this Section 1.4(h). Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable
record date.
(i) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any
part of such principal amount.
- 12 -
<PAGE>
<PAGE>
Section 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder, any holder of Preferred
Securities or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Securities Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. If, by reason of the suspension of or
irregularities in regular mail services or for any other reason, it
shall be impossible or impracticable to mail notice of any event to
Holders when said notice is required to be given pursuant to any
provision of this Indenture or of the Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required thereunder to be a
part of and govern this Indenture, the provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
- 13 -
<PAGE>
<PAGE>
Section 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors and assigns, the holders of Senior Indebtedness, the
Holders of the Securities and, to the extent expressly provided in
Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of
Preferred Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES).
Section 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the
Securities) payment of interest or principal (and premium, if any) or
other amounts in respect of such Security need not be made on such date,
but may be made on the next succeeding Business Day (and no interest
shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, until such next succeeding Business
Day) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day (in each case with the same force and effect as if made on
the Interest Payment Date or Redemption Date or at the Stated Maturity).
- 14 -
<PAGE>
<PAGE>
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
(a) The Securities and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this
Article II, or in such other form or forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by
the officers executing such securities, as evidenced by their execution
of the Securities. If the form of Securities is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 with respect
to the authentication and delivery of such Securities.
(b) The definitive Securities shall be printed, lithographed
or engraved or produced by any combination of these methods, if required
by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
(c) Securities distributed to holders of Global Preferred
Securities (as defined in the Trust Agreement) upon the dissolution of
the Issuer Trust shall be distributed in the form of one or more Global
Securities registered in the name of a Depositary or its nominee, and
deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Preferred Securities other than
Global Preferred Securities upon the dissolution of the Issuer Trust
shall not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests in
such Securities.
Section 2.2. Form of Face of Security.
ALLEGIANT BANCORP, INC.
9.875% Junior Subordinated Debentures due August 2, 2029
No. 1 $15,584,420.00
Allegiant Bancorp, Inc., a Missouri corporation (hereinafter
called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises
to pay to Allegiant Capital Trust I, or registered assigns, the
principal sum of Fifteen Million Five Hundred Eighty-Four Thousand Four
Hundred and Twenty Dollars ($15,584,420.00) on August 2, 2029, or such other
principal amount represented hereby as may be set forth in the records
of the Securities Registrar hereinafter referred to in accordance with
the Indenture provided that the Company may shorten the Stated Maturity
of the principal of this Security to a date not
- 15 -
<PAGE>
<PAGE>
earlier than August 2, 2004. The Company further promises to pay
interest on said principal from August 2, 1999, or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing September 30, 1999 at the rate of 9.875% per annum, together
with Additional Sums, if any, as provided in Section 10.6 of the
Indenture, until the principal hereof is paid or duly provided for or
made available for payment; provided that any overdue principal, premium
or Additional Sums and any overdue installment of interest shall bear
Additional Interest at the rate of 9.875% per annum (to the extent that
the payment of such interest shall be legally enforceable), compounded
quarterly from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on
demand. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in
such period. The amount of interest payable for any full interest
period shall be computed by dividing the applicable rate per annum by
four. The initial payment of interest on any Security that is issued
between a Regular Record Date and the related Interest Payment Date
shall be computed on a pro rata basis, based on the number of days
between such Regular Record Date and such Interest Payment Date, and
shall be payable on the next succeeding Interest Payment Date following
such Interest Payment Date. The interest 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 15th day of the month in which such
Interest Payment Date falls. Any such interest 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 not less than 10 days
prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities 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, from time to time to defer the payment of interest on this
Security 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
including Additional Interest, as provided below; provided however, that
no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security, as then in effect, and no such Extension
Period may end on a date other than an Interest Payment Date; and
provided further, however, that during any such Extension Period, the
Company shall not (a) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect
to, any of the Company's capital stock, (b) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company that rank pari passu with or
junior in interest to this Security, including the Company's obligation
associated with the Preferred Securities, or (c) redeem, purchase or
acquire less than all of the Securities or any of the Preferred
Securities (other than (i) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection
with any employment contract, benefit plan or other similar arrangement
with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
shareholder stock purchase plan or in connection with the issuance of
capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into at least 30 days prior to the applicable
Extension Period, (ii) as a result of a reclassification,
an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a Subsidiary of the Company) for
any class or series of the Company's capital stock, (iii) the purchase
of fractional interests in shares of the Company's capital stock
pursuant to the
- 16 -
<PAGE>
<PAGE>
conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (iv) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or
other property under any Rights Plan, or the redemption or repurchase of
rights pursuant thereto, or (v) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed 20 consecutive
quarterly interest payment periods, extend beyond the Stated Maturity of
the principal of this Security or end on a date other than an Interest
Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional
Interest then due on any Interest Payment Date, the Company may elect to
begin a new Extension Period, subject to the above conditions. No
interest shall be due and payable during an Extension Period, except at
the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear
Additional Interest (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 9.875% per annum,
compounded quarterly and calculated as set forth in the first paragraph
of this Security, from the date on which such amounts would otherwise
have been due and payable until paid or made available for payment. The
Company shall give the Holder of this Security and the Trustee notice of
its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
this Security would be payable but for such deferral or so long as such
securities are held by Allegiant Capital Trust I, or at least one
Business Day prior to the earlier of (a) the next succeeding date on
which Distributions on the Preferred Securities of the Issuer Trust
would be payable but for such deferral, and (b) the date on which the
Property Trustee of the Issuer Trust is required to give notice to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business
Day prior to such record date.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided however,
that at the option of the Company payment of interest may be made (a) by
check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register, or (b) if to a Holder
of $1,000,000 or more in aggregate principal amount of this Security, by
wire transfer in immediately available funds upon written request to the
Trustee not later than 15 calendar days prior to the date on which the
interest is payable.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments
to the prior payment in full of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided,
and (c) appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each Holder hereof, by his or her acceptance hereof,
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
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.
- 17 -
<PAGE>
<PAGE>
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual or
facsimile 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.
ALLEGIANT BANCORP, INC.
By:_____________________________________
Shaun R. Hayes
President and Chief Executive Officer
Attest:
_________________________________
Secretary or Assistant Secretary
This is one of the Securities referred to in the within-
mentioned Indenture.
Dated: _________________________ BANKERS TRUST COMPANY, as Trustee
By:_____________________________________
Name:
Title:
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued
under the Junior Subordinated Indenture, dated as of August 2, 1999
(herein called the "Indenture"), between the Company and Bankers 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 Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
All terms used in this Security that are defined in the
Indenture or, if not defined in the Indenture, in the Amended and
Restated Trust Agreement dated as of August 2, 1999 (as modified,
amended or supplemented from time to time the "Trust Agreement"),
relating to Allegiant Capital Trust I (the "Issuer Trust") among the
Company, as Depositor, the Trustees named therein and the holders from
time to time
- 18 -
<PAGE>
<PAGE>
of the Trust Securities issued pursuant thereto shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case
may be.
The Company has the right to redeem this Security (a) on or
after August 2, 2004, in whole at any time or in part from time to
time, or (b) in whole (but not in part), at any time within 90 days
following the occurrence and during the continuation of a Tax Event,
Investment Company Event, or Capital Treatment Event, in each case at
the Redemption Price described below, and subject to prior regulatory
approval, if required. The Redemption Price shall equal 100% of the
principal amount hereof being redeemed, together with accrued interest
to but excluding the date fixed for redemption.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert - The Indenture contains provisions for
defeasance at any time [of the entire indebtedness of this Security]
[or] [certain restrictive covenants and Events of Default with respect
to this Security] [, in each case] 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 a majority in
principal amount of the Outstanding Securities to be affected by such
supplemental indenture. The Indenture also contains provisions
permitting Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all
Securities, 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 herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
[If the Security is not a Discount Security, insert - As
provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Securities 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 aggregate principal amount of the
Outstanding Securities may declare the principal amount of all the
Securities to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare
the principal of all the Outstanding Securities to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount
of the Preferred Securities then outstanding shall have the right to
make such declaration 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 shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.]
[If the Security is a Discount Security, insert - As provided
in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities 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 aggregate principal amount of the
Outstanding Securities may declare an amount of principal of the
Securities to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare
such
- 19 -
<PAGE>
<PAGE>
principal amount of the Outstanding Securities to be immediately due and
payable, the Holders of at least 25% in aggregate Liquidation Amount of
the Preferred Securities then outstanding shall have the right to make
such declaration by a notice in writing to the Company and the Trustee.
The principal amount payable upon such acceleration shall be equal to
[insert formula for determining the amount]. Upon any such declaration,
such amount of the principal of and the accrued interest (including any
Additional Interest) on all the Securities shall become immediately due
and payable, provided that the payment of such principal and interest
(including any Additional Interest) on all the Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture.
Upon payment (a) of the amount of principal so declared due and payable
and (b) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the
payment of the principal of and premium and interest, if any, on this
Security shall terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
(and premium, if any) and interest (including Additional 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 for such purpose, 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 such
Holder's attorney duly authorized in writing, and thereupon one or more
new Securities, of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture, and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the
same.
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 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 agrees that for United States
federal, state and local tax purposes it is intended that this Security
constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE
COMPANY, DOES NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.
- 20 -
<PAGE>
<PAGE>
Section 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY 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.
Section 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities referred to in the within-
mentioned Indenture.
Dated: ________________________ BANKERS TRUST COMPANY, as Trustee
By:__________________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is $17,922,080.
(b) Subject to Section 3.16, the Securities' Stated Maturity
shall be August 2, 2029.
(c) The Securities, established pursuant to a Board
Resolution, shall bear interest at a per annum rate equal to 9.875% from
August 2, 1999 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth in Section 3.12), in
arrears, on March 31, June 30, September 30 and December 31 of each
year, commencing September 30, 1999, until the principal thereof is paid
or made available for payment. Interest will compound quarterly and
will accrue at a per annum rate equal to 9.875% to the extent permitted
by applicable law, on any interest installment in arrears for more than
one quarterly period or during an extension of an interest payment
period as set forth below in Section 3.12.
- 21 -
<PAGE>
<PAGE>
(d) The principal of (and premium, if any) and interest on
the Securities shall be payable at the office or agency of the Paying
Agent in the United States maintained for such purpose and at any other
office or agency maintained by the Company for such purpose 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 Security Register or (ii) if to a Holder of
$1,000,000 or more in aggregate principal amount of this Security, by
wire transfer in immediately available funds upon written request to the
Trustee not later than 15 calendar days prior to the date on which the
interest is payable, at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
(e) Securities may be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the Depositary
for such Global Securities shall be The Depository Trust Company.
(f) The securities shall be subordinated in right of payment
to Senior Indebtedness as provided in Article XIII.
Section 3.2. Denominations.
The Securities shall be in registered form without coupons and
shall be issuable in denominations of $10 and any integral multiple
thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer, President or
one of its Vice Presidents, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities. At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities. If the form or terms of the Securities
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities,
and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(i) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the provisions of this
Indenture;
(ii) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section
3.1, that such terms have been established in conformity with the
provisions of this Indenture; and
- 22 -
<PAGE>
<PAGE>
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(c) If such form or terms have been so established, the
Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to
the Trustee.
(d) Notwithstanding the provisions of Section 3.1 and Section
3.3(b), if all Securities are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to Section 3.3(b) at or prior to the
authentication of each Security if such documents are delivered at or
prior to the authentication upon original issuance of the first Security
to be issued.
(e) Each Security shall be dated the date of its
authentication.
(f) No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by the manual or
facsimile signature of one of its authorized officers, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.10, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
Section 3.4. Temporary Securities.
(a) Pending the preparation of definitive Securities, the
Company may execute, and upon receipt of a Company Order the Trustee
shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
(b) If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated
for that purpose without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive securities, of any authorized
denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
- 23 -
<PAGE>
<PAGE>
Section 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for
such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may
be registered, in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (i) such Depositary
advises the Trustee in writing that such Depositary is no longer willing
or able to properly discharge its responsibilities as Depositary with
respect to such Global Security, and the Company is unable to locate a
qualified successor within 90 days of receipt of such notice from the
Depositary, (ii) the Company executes and delivers to the Trustee a
Company Order stating that the Company elects to terminate the book-
entry system through the Depositary, or (iii) there shall have occurred
and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Securities Registrar for
exchange or cancellation as provided in this Article III. If any Global
Security is to be exchanged for other Securities or canceled in part, or
if another Security is to be exchanged in whole or in part for a
beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall
be reduced, or increased by an amount equal to the portion thereof to be
so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records
of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by
the Depositary, accompanied by registration instructions, the Trustee
shall, subject to Section 3.6(b) and as otherwise provided in this
Article III, authenticate and deliver any Securities issuable in
exchange for such Global Security (or any portion thereof) in accordance
with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article III,
Section 9.6 or 11.6 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the Holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such owner's
beneficial interest in a Global Security shall be shown only on, and the
transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or agent. Neither the
Trustee nor the Securities Registrar shall have any liability in respect
of any transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such owners
and the Depositary and/or its Agent Members.
- 24 -
<PAGE>
<PAGE>
Section 3.6. Registration, Transfer and Exchange Generally; Certain
Transfers and Exchanges; Securities Act Legends.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and transfers of Securities. Such register
is herein sometimes referred to as the "Securities Register." The
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the offices or agencies of the Company designated for that purpose, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations of like tenor and aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations, of like tenor and
aggregate principal amount and bearing such legends as may be required
by this Indenture, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant
to the provisions of this Section, (i) to issue, exchange or register
the transfer of any Security during a period beginning at the opening of
business 15 days before the day of selection for redemption of
Securities pursuant to Article XI and ending at the close of business on
the day of mailing of the notice of redemption, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole
or in part, except, in the case of any such Security to be redeemed in
part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Indenture, transfers and exchanges of Securities
and beneficial interests in a Global Security shall be made only in
accordance with this Section 3.6(b).
(i) Non-Global Security to Non-Global Security. A
Security that is not a Global Security may be transferred, in whole or
in part, to a Person who takes delivery in the form of another Security
that is not a Global Security as provided in Section 3.6(a).
- 25 -
<PAGE>
<PAGE>
(ii) Exchanges Between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged
for a Security that is not a Global Security as provided in Section 3.5.
Section 3.7. Mutilated, Lost and Stolen Securities.
(a) If any mutilated Security, including any temporary
Security, is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each
of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, of like
tenor and aggregate principal amount, bearing the same legends, and
bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security, and (ii) such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser or a protected purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security, of like tenor and aggregate principal amount and bearing the
same legends as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
3.7, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
(e) Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
(f) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.
(a) Interest and Additional Interest on any Security that is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date, shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest in respect of
Securities, except that, unless otherwise provided in the Securities,
interest payable on the Stated Maturity of the principal of a Security
shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security that is issued between a Regular
Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to Section
3.1 with respect to such Securities.
- 26 -
<PAGE>
<PAGE>
(b) Any interest on any Security that is due and payable, but
is not timely paid or duly provided for, on any Interest Payment Date
for Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities in
respect of which interest is in default (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment, and which shall be fixed at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest, which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of a Security at the address of such Holder as
it appears in the Securities Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the
English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered
on such Special Record Date and shall no longer be payable pursuant to
the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities in
respect of which interest is in default may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Securities are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause (ii), such
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue interest, that were carried by such
other Security.
Section 3.9. Persons Deemed Owners.
(a) The Company, the Trustee and any agent of the Company or
the Trustee shall treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving
payment of principal of and (subject to Section 3.8) any interest on
such Security and for all
- 27 -
<PAGE>
<PAGE>
other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
(b) No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights under
this Indenture with respect to such Global Security, and such Depositary
may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by a Depositary or impair, as between a Depositary and such
holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee)
as Holder of any Security.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities, and Securities
surrendered directly to the Trustee for any such purpose, shall be
promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section 3.10,
except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall
deliver to the Company a certificate of such destruction.
Section 3.11. Computation of Interest.
Interest on the Securities for any period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in any partial month in such period, and interest
on the Securities for a full period shall be computed by dividing the
rate per annum by four.
Section 3.12. Deferrals of Interest Payment Dates.
(a) 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 the Securities, from time to time to defer the payment of
interest on such Securities for such period or periods (each an
"Extension Period") not to exceed the number of consecutive interest
periods that equal 20 consecutive quarterly periods with respect to each
Extension Period, during which Extension Periods the Company shall have
the right to make partial payments of interest on any Interest Payment
Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period, the Company
shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon, if any, at the rate
specified for the Securities to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the
Stated Maturity of the principal of the Securities; and provided
further, however, that, during any such Extension Period, the Company
shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in
interest to the Securities, including the Company's obligations
associated with the Preferred Securities or (iii) redeem, purchase or
acquire less than all of the Securities or any of the Preferred
Securities (other than (A) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection
with any employment contract, benefit plan or other similar arrangement
with or for the
- 28 -
<PAGE>
<PAGE>
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or shareholder
stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable
for such capital stock) as consideration in an acquisition
transaction entered into at least 30 days prior to the applicable
Extenstion Period, (B) as a result of a reclassification, an exchange
or conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or
series of the Company's capital stock, (C) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (D) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or
other property under any Rights Plan, or the redemption or repurchase of
rights pursuant thereto, or (E) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may further defer the payment of
interest, provided that no Event of Default has occurred and is
continuing and provided further, that no Extension Period shall exceed
twenty (20) consecutive quarterly periods, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other than
an Interest Payment Date. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period, subject to the above
conditions. No interest or Additional Interest shall be due and payable
during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. The
Company shall give the Holders of the Securities and the Trustee notice
of its election to begin any such Extension Period at least one Business
Day prior to the next succeeding Interest Payment Date on which interest
on Securities would be payable but for such deferral or, with respect to
any Securities issued to the Issuer Trust, so long as any such
Securities are held by the Issuer Trust, at least one Business Day prior
to the earlier of (x) the next succeeding date on which Distributions
(as defined in the Trust Agreement) on the Preferred Securities of the
Issuer Trust would be payable but for such deferral, and (y) the date on
which the Property Trustee of the Issuer Trust is required to give
notice to holders of such Preferred Securities of the record date or the
date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.
(b) The Trustee shall promptly give notice of the Company's
election to begin any such Extension Period to the Holders of the
Outstanding Securities.
Section 3.13. Right of Set-Off.
With respect to the Securities initially issued to the Issuer
Trust, notwithstanding anything to the contrary herein, the Company
shall have the right to set off any payment it is otherwise required to
make in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making,
a payment under the Guarantee or to a holder of Preferred Securities
pursuant to an action undertaken under Section 5.8 of this Indenture.
Section 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company
and, by its acceptance of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a beneficial interest in,
such Security agree that for United States federal, state and local tax
purposes it is intended that such Security constitutes indebtedness.
- 29 -
<PAGE>
<PAGE>
Section 3.15. CUSIP Numbers.
The Company, in issuing the Securities, may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notice of redemption and other similar or related materials
as a convenience to Holders; provided that any such notice or other
materials may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in
any notice of redemption or other materials and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
Section 3.16. Shortening of Stated Maturity.
The Company shall have the right to shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier
than August 2, 2004, provided that the Company shall give notice to
the Holders, the Trustee and, in the case of Securities issued to an
Issuer Trust, the Issuer Trust of such shortening no less than 90 days
prior to the effectiveness thereof and provided that the Company shall
have received prior regulatory approval, if required.
Section 3.17. Listing of the Junior Subordinated Debentures.
In the event that the Junior Subordinated Debentures are distributed
to the holders of the Preferred Securities for any reason, the Depositor
and the Issuer Trust will use their respective best efforts to cause the
Junior Subordinated Debentures to be listed, subject to notice of
issuance, at the time of such distribution, upon the American Stock
Exchange, such other securities exchange or exchanges and/or the Nasdaq
National Market upon which the Preferred Securities are then listed.
The Depositor will thereafter comply with all registration, filing and
reporting requirements of the American Stock Exchange or such other exchange
or Nasdaq National Market upon which the Junior Subordinated Debentures are
listed.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for and as
otherwise provided in this Section 4.1) and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 3.7
and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(C) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of subclause (ii)(A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for the principal (and
premium, if any) and interest (including any Additional Interest) to the
date of such deposit (in the
- 30 -
<PAGE>
<PAGE>
case of Securities that have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall
be held in trust and applied by the Trustee, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
and Additional Interest for the payment of which such money or
obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities, 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) default in the payment of any interest upon any Security,
including any Additional Interest in respect thereof, when it becomes
due and payable and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium,
if any, on) any Security when due, whether at its Stated Maturity, upon
redemption or otherwise;
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities or in this Indenture for a period of 90 days
after the date on which written notice of such failure (a "Notice of
Default"), requiring the Company to remedy the same, shall have been
given to the Company by the Trustee by registered or certified mail or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities; or
- 31 -
<PAGE>
<PAGE>
(d) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar proceeding
with respect to the Company or all or substantially all of its property;
or a court or other governmental agency shall enter a decree or order
appointing a receiver or similar official and such decree or order shall
remain unstayed and undischarged for a period of 60 days.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than an Event of Default
specified in Section 5.1(d)) with respect to Securities 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 aggregate principal
amount of the Outstanding Securities may declare the principal amount
(or, if the Securities are Discount Securities, such portion of the
principal amount as may be specified in the terms) of all the Securities
to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders); provided, however that, if,
upon an Event of Default, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities fail to declare
the principal of all the Outstanding Securities to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount
of the Preferred Securities issued by the Issuer Trust then outstanding
shall have the right to make such declaration by a notice in writing to
the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued
interest (including any Additional Interest) on all the Securities shall
become immediately due and payable. If an Event of Default specified in
Section 5.1(d) with respect to Securities at the time Outstanding
occurs, the principal amount of all the Securities (or, if the
Securities are Discount Securities, such portion of the principal amount
of such Securities as may be specified by the terms) shall
automatically, and without any declaration or other action on the part
of the Trustee or any Holder, become immediately due and payable.
Payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in
Article XIII notwithstanding that such amount shall become immediately
due and payable as herein provided.
(b) At any time after such a declaration of acceleration with
respect to the Securities has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article V provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee
a sum sufficient to pay:
(A) all overdue installments of interest on all
Securities;
(B) any accrued Additional Interest on all
Securities;
(C) the principal of (and premium, if any, on)
any Securities that have become due otherwise than by such declaration
of acceleration and interest and Additional Interest thereon at the rate
borne by the Securities; and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(ii) all Events of Default with respect to Securities,
other than the non-payment of the principal of Securities that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13.
- 32 -
<PAGE>
<PAGE>
(c) If the Holders of Securities fail to annul such
declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount of Preferred Securities issued by the
Issuer Trust then outstanding shall also have the right to rescind and
annul such declaration and its consequences by written notice to the
Company and the Trustee, subject to the satisfaction of the conditions
set forth in clauses (a) and (b) above of this Section 5.2.
(d) No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that if:
(i) default is made in the payment of any installment
of interest (including any Additional Interest) on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(ii) default is made in the payment of the principal of
(and premium, if any, on) any Security at the Stated Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of the Securities, the whole amount then
due and payable on the Securities for principal (and premium, if any)
and interest (including any Additional Interest), and, in addition
thereto, all amounts owing the Trustee under Section 6.7.
(b) If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company or any other
obligor upon such Securities and collect the monies adjudged or decreed
to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.
(c) If an Event of Default with respect to Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities by
such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial or administrative proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or
of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal
(and premium, if any) or
- 33 -
<PAGE>
<PAGE>
interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any Additional
Interest) owing and unpaid in respect to the Securities and to file such
other papers or documents as may be necessary or advisable and to take
any and all actions as are authorized under the Trust Indenture Act in
order to have the claims of the Holders and any predecessor to the
Trustee under Section 6.7 allowed in any such judicial or administrative
proceedings; and
(ii) in particular, the Trustee shall be authorized to
collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same in accordance with Section
5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator, conservator (or other similar official) in any such
judicial or administrative proceeding is hereby authorized by each
Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other
similar committee.
Section 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, subject to Article XIII and after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee
with respect to the Securities pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on
account of principal (and premium, if any) or interest (including any
Additional Interest), upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts
then due and unpaid upon Securities for principal (and premium, if any)
and interest (including any Additional Interest) in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or
- 34 -
<PAGE>
<PAGE>
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest (including
any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities shall have
any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official)
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities,
as herein before provided;
(b) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities; it
being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing
itself of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities, or to obtain or
to seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such
Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Sections 3.8 and 3.12) interest (including any
Additional Interest) on such Security on the Stated Maturity (or in the
case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder. Any registered holder of
the Preferred Securities issued by the Issuer Trust shall have the
right, upon the occurrence of an Event of Default described in Section
5.1(a) or 5.1(b), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of (and premium, if
any) and (subject to Sections 3.8 and 3.12) interest (including any
Additional Interest) on the Securities having a principal amount equal
to the aggregate Liquidation Amount of such Preferred Securities held by
such holder.
- 35 -
<PAGE>
<PAGE>
Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred
Securities issued by the Issuer Trust has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee, such Holder or such holder of Preferred
Securities, then, and in every such case, the Company, the Trustee, such
Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and
remedies of the Trustee, such Holder and such holder of Preferred
Securities shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.7, no right or remedy herein conferred upon or reserved to the Trustee
or the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
(a) No delay or omission of the Trustee, any Holder of any
Security with respect to the Securities or any holder of any Preferred
Security to exercise any right or remedy accruing upon any Event of
Default with respect to the Securities shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
(b) Every right and remedy given by this Article V or by law
to the Trustee or to the Holders and the right and remedy given to the
holders of Preferred Securities by Sections 5.2 and 5.8 may be exercised
from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case
may be.
Section 5.12. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith,
determine that the proceeding so directed would be unjustly prejudicial
to the Holders not joining in any such direction or would involve the
Trustee in personal liability.
- 36 -
<PAGE>
<PAGE>
Section 5.13. Waiver of Past Defaults.
(a) The Holders of a majority in aggregate principal amount
of the Outstanding Securities affected thereby and, the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities
issued by the Issuer Trust may waive any past default hereunder and its
consequences except a default:
(i) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Security
(unless such default has been cured and the Company has paid to or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest (including Additional Interest) and all
principal of (and premium, if any on) all Securities due otherwise than
by acceleration); or
(ii) in respect of a covenant or provision hereof that
under Article IX cannot be modified or amended without the consent of
each Holder of any Outstanding Security affected thereby.
(b) Any such waiver shall be deemed to be on behalf of the
Holders of all the Securities, or in the case of waiver by holders of
Preferred Securities issued by the Issuer Trust, by all holders of
Preferred Securities issued by the Issuer Trust.
(c) Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but
the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in aggregate principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any)
or interest (including any Additional Interest) on any Security on or
after the Stated Maturity.
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
- 37 -
<PAGE>
<PAGE>
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in the case of any such certificates or opinions
that by any provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
Section 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder with respect
to the Securities, the Trustee shall transmit by mail to all Holders
- 38 -
<PAGE>
<PAGE>
of Securities, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been
cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security, the
Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of
the Holders of Securities; and provided further, that, in the case of
any default of the character specified in Section 5.1(c), no such notice
to Holders of Securities shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 6.2, the term
"default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default with respect to the Securities.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, Security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction; provided,
however, that nothing herein shall relieve the Trustee of its
obligations upon the occurrence of an Event of Default that has not been
cured or waived to exercise with respect to the Securities such of the
rights and powers vested in the Trustee by this Indenture, and to use
the same degree of care and skill in exercising such rights and powers
as a reasonably prudent person would use under the circumstances in the
conduct of his own affairs.
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, indenture, Security or other paper or document,
but the Trustee in its discretion may make such inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney; and
- 39 -
<PAGE>
<PAGE>
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Securities Registrar or
such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement.
(a) The Company agrees to pay to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
in such amounts as the Company and the Trustee shall agree from time to
time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust).
(b) The Company agrees to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense
disbursement or advance as may be attributable to its negligence, bad
faith or willful misconduct.
(c) Since the Issuer Trust is being formed solely to
facilitate an investment in the Preferred Securities, the Company, as
Holder of the Common Securities, hereby covenants to pay all debts and
obligations (other than with respect to the Preferred Securities and the
Common Securities) and all reasonable costs and expenses of the Issuer
Trust (including, without limitation, all costs and expenses relating to
the organization of the Issuer Trust, the fees and expenses of the
trustees and all reasonable costs and expenses relating to the operation
of the Issuer Trust) and to pay any and all taxes, duties, assessments
or governmental charges of whatever nature (other than withholding
taxes) imposed on the Issuer Trust by the United States, or any taxing
authority, so that the net amounts received and retained by the Issuer
Trust and the Property Trustee after paying such expenses will be equal
to the amounts the
- 40 -
<PAGE>
<PAGE>
Issuer Trust and the Property Trustee would have received had no such
costs or expenses been incurred by or imposed on the Issuer Trust. The
foregoing obligations of the Company are for the benefit of, and shall
be enforceable by, any person to whom any such debts, obligations,
costs, expenses and taxes are owed (each, a "Creditor") whether or not
such Creditor has received notice thereof. Any such Creditor may
enforce such obligations directly against the Company, and the Company
irrevocably waives any right or remedy to require that any such Creditor
take any action against the Issuer Trust or any other person before
proceeding against the Company. The Company shall execute such
additional agreements as may be necessary or desirable to give full
effect to the foregoing.
(d) The Company shall indemnify the Trustee, its directors,
officers, employees and agents for, and hold them harmless against, any
loss, liability or expense (including the reasonable compensation and
the expenses and disbursements of its agents and counsel) incurred
without negligence, bad faith or willful misconduct, arising out of or
in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the reasonable costs and
expenses of defending against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
This indemnification shall survive the termination of this Indenture or
the resignation or removal of the Trustee.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 5.1(d) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform Act of
1978 or any successor statute.
Section 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be
subject to, and shall comply fully with, the provisions of Section
310(b) of the Trust Indenture Act. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in
the second to last paragraph of said Section 310(b).
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall be:
(a) a Person organized and doing business under the laws of
the United States of America or of any state or territory thereof or of
the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by
federal, state, territorial or District of Columbia authority, or
(b) an entity organized and doing business under the laws of
a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws
to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal or state
authority. If such entity publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this
Section 6.9, the combined capital and surplus of such entity 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
- 41 -
<PAGE>
<PAGE>
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VI. Neither
the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as
Trustee for the Securities issued hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to
the Securities by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee
and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (x) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to
the Securities issued hereunder, or (y) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to the Securities issued hereunder and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Securities, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee with
respect to the Securities. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the
Securities and supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities shall have been
so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who
- 42 -
<PAGE>
<PAGE>
has been a bona fide Holder of a Security for at least six months may,
subject to Section 5.14, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities and each
appointment of a successor Trustee with respect to the Securities by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities as their names and addresses
appear in the Securities Register. Each notice shall include the name
of the successor Trustee with respect to the Securities and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to in Section 6.11(a).
(c) No successor Trustee shall accept its appointment unless,
at the time of such acceptance, such successor Trustee shall be
qualified and eligible under this Article VI.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any entity succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be otherwise qualified and
eligible under this Article VI, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor Trustee or in the name of such successor Trustee, and in all
cases the certificate of authentication shall have the full force which
it is provided anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
- 43 -
<PAGE>
<PAGE>
Section 6.14. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities, which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original
issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be an entity organized and doing
business under the laws of the United States of America, or of any state
or territory thereof or of the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 6.14.
(b) Any entity into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any entity succeeding to all
or substantially all of the corporate trust business of an
Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such entity shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent, which shall be
acceptable to the Company and shall give notice of such appointment in
the manner provided in Section 1.6 to all Holders of Securities. Any
successor Authenticating Agent upon acceptance hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
eligible under the provision of this Section.
(d) The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the provisions of Section 6.7.
- 44 -
<PAGE>
<PAGE>
(e) If an appointment is made pursuant to this Section 6.14,
the Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities referred to in the within
mentioned Indenture.
Dated: ________________________ BANKERS TRUST COMPANY, as Trustee
By:_______________________________
As Authenticating Agent
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) quarterly, not more than 15 days after March 15, June 15,
September 15, and December 15 in each year, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders as of such dates, excluding from any such list names and
addresses received by the Trustee in its capacity as Securities
Registrar; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished, excluding from any
such list names and addresses received by the Trustee in its capacity as
Securities Registrar.
Section 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its
capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
Section 7.3. Reports by Trustee and Paying Agent.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
- 45 -
<PAGE>
<PAGE>
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted within 60 days of
January 31 in each calendar year, commencing with January 31, 2000.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any Securities are
listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding,
backup withholding, tax and information reporting requirements under the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
issued thereunder with respect to payments on, or with respect to, the
Securities.
Section 7.4. Reports by Company.
The Company shall file or cause to be filed with the Trustee
and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided in the Trust Indenture Act. In the case of information,
documents or reports required to be filed with the Commission pursuant
to Section 13(a) or Section 15(d) of the Exchange Act, the Company shall
file or cause the filing of such information documents or reports with
the Trustee within 15 days after the same is required to be filed with
the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company,
unless:
(a) if the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance or transfer, or that leases, the properties and
assets of the Company substantially as an entirety shall be an entity
organized and existing under the laws of the United States of America or
any state thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any), and interest
(including any Additional Interest) on all the Securities and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed; provided, however, that nothing in
this Indenture shall be deemed to restrict or prohibit, and no
supplemental indenture shall be required in the case of the merger of a
bank (as defined below) with and into a bank or the Company, the
consolidation of banks into a bank or the Company, or the sale or
other disposition of all or substantially all of the assets of any bank to
another bank or the Company, if, in any such case in which the
Company was not the surviving, resulting or acquiring entity, the
Company would own, directly or indirectly, at least 80% of the voting
securities of the bank (and of any other bank
- 46 -
<PAGE>
<PAGE>
any voting securities of which are owned, directly or indirectly, by such
bank) surviving such merger, resulting from such consolidation or
acquiring such assets;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of time, or
both, would constitute an Event of Default, shall have occurred and be
continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with and, in the case of a transaction subject to this Section
8.1 but not requiring a supplemental indenture under paragraph (a) of
this Section 8.1, an Officer's Certificate or Opinion of Counsel to the
effect that the surviving, resulting or successor entity is legally
bound by the Indenture and the Securities; and the Trustee, subject to
Section 6.1, may rely upon such Officers' Certificates and Opinions of
Counsel as conclusive evidence that such transaction complies with this
Section 8.1.
For purposes of subparagraph (a) above, the term "bank" means
each of:
(x) any banking subsidiary of the Company the consolidated
assets of which constitute 20% or more of the consolidated
assets of the Company and consolidated subsidiaries;
(y) any other banking subsidiary designated as a bank
pursuant to a board resolution and set forth in an
Officers' Certificate delivered to the trustee; and
(z) any subsidiary of the Company that owns, directly or
indirectly, any voting securities, or options, warrants
or rights to subscribe for or purchase voting securities,
of any bank under (x) and (y) above and in the case of
(x), (y) and this subparagraph (z), their respective
successors (whether by consolidation, merger, conversion
transfer of substantially all their assets and business
or otherwise) so long as any such successor is a banking
subsidiary (in the case of (x) and (y)) or a subsidiary
(in the case of (z)) of the Company.
Section 8.2. Successor Company Substituted.
(a) Upon any consolidation or merger by the Company with or
into any other Person, or any conveyance, transfer or lease by the
Company of its properties and assets substantially as an entirety to any
Person in accordance with Section 8.1, the successor entity formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
(b) Such successor Person may cause to be executed, and may
issue either in its own name or in the name of the Company, any or all
of the Securities issuable hereunder that theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the
order of such successor Person instead of the Company and subject to all
the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication pursuant to such
- 47 -
<PAGE>
<PAGE>
provisions and any Securities that such successor Person thereafter
shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.
(c) In case of any such consolidation, merger, sale,
conveyance or lease, such changes in phraseology and form may be made in
the Securities thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may amend or waive any provision of this Indenture or
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained;
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(c) to facilitate the issuance of Securities in certificated
or other definitive form;
(d) to add to the covenants of the Company for the benefit of
the Holders of the Securities;
(e) to add any additional Events of Default for the benefit
of the Holders of the Securities;
(f) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall not apply
to any Outstanding Securities;
(g) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (g) shall not adversely affect the
interest of the Holders of Securities in any material respect or, in the
case of the Securities issued to the Issuer Trust and for so long as any
of the Preferred Securities issued by the Issuer Trust shall remain
outstanding, the holders of such Preferred Securities;
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11(b); or
(i) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
- 48 -
<PAGE>
<PAGE>
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities under
this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce
the amount of principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Stated Maturity
thereof pursuant to Section 5.2, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date),
(b) reduce the percentage in aggregate principal amount of
the Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(c) modify any of the provisions of this Section, Section
5.13 or Section 10.5, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security
affected thereby; provided, further, that, in the case of the Securities
issued to the Issuer Trust, so long as any of the Preferred Securities
issued by the Issuer Trust remains outstanding, (i) no such amendment
shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior
consent of the holders of a majority of the aggregate Liquidation Amount
of such Preferred Securities then outstanding unless and until the
principal of (and premium, if any, on) the Securities and all accrued
and (subject to Section 3.8) unpaid interest (including any Additional
Interest) thereon have been paid in full, and (ii) no amendment shall be
made to Section 5.8 of this Indenture that would impair the rights of
the holders of Preferred Securities issued by the Issuer Trust provided
therein without the prior consent of the holders of each such Preferred
Security then outstanding unless and until the principal of (and
premium, if any, on) the Securities and all accrued and (subject to
Section 3.8) unpaid interest (including any Additional Interest) thereon
have been paid in full.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Officers'
- 49 -
<PAGE>
<PAGE>
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent herein provided for relating to such
action have been complied with. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article IX, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
IX shall conform to the requirements of the Trust Indenture Act as then
in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article IX may, and shall if
required by the Company, bear a notation in form approved by the Company
as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities in accordance with the terms of such Securities and this
Indenture.
Section 10.2. Maintenance of Office or Agency.
(a) The Company will maintain in each Place of Payment an
office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served.
The Company initially appoints the Trustee, acting through its Corporate
Trust Office, as its agent for said purposes. The Company will give
prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
- 50 -
<PAGE>
<PAGE>
(b) The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment for Securities
for such purposes. The Company will give prompt written notice to the
Trustee of any such designation and any change in the location of any
such office or agency.
Section 10.3. Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying
Agent with respect to the Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest (including
Additional Interest) on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest (including
Additional Interest) so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its failure so to act.
(b) Whenever the Company shall have one or more Paying
Agents, it will, prior to 10:00 a.m., New York City time, on each due
date of the principal of (or premium, if any) or interest, including
Additional Interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest,
including Additional Interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal (and
premium, if any) or interest, including Additional Interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
(c) The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including Additional
Interest) on the Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the
Company (or any other obligor upon such Securities) in the making of any
payment of principal (and premium, if any) or interest (including
Additional Interest) in respect of any Security;
(iii) at any time during the continuance of any default
with respect to the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(iv) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent.
(d) The Company may, at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same terms as those
upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
- 51 -
<PAGE>
<PAGE>
(e) Any money deposited with the Trustee or any Paying Agent,
or then held by the Company in trust for the payment of the principal of
(and premium, if any) or interest (including Additional Interest) on any
Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest (including Additional Interest) has become
due and payable shall (unless otherwise required by mandatory provision
of applicable escheat or abandoned or unclaimed property law) be paid on
Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate covering the preceding calendar year, stating
whether or not to the best knowledge of the signers thereof the Company
is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions
of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may
have knowledge. For the purpose of this Section 10.4, compliance shall
be determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.
Section 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities
specified in Section 9.2, if any, the Company may omit in any particular
instance to comply with any covenant or condition provided pursuant to
Section 3.1, 9.1(c) or 9.1(d) with respect to the Securities, if before
or after the time for such compliance the Holders of a majority in
aggregate principal amount of the Outstanding Securities shall, by Act
of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company in respect of any such
covenant or condition shall remain in full force and effect.
Section 10.6. Additional Sums.
So long as no Event of Default has occurred and is continuing
and except as otherwise specified as contemplated by Section 2.1 or
Section 3.1, if: (a) the Issuer Trust is the Holder of all of the
Outstanding Securities, and (b) a Tax Event described in clause (a) or
(c) of the definition of "Tax Event" in Section 1.1 hereof has occurred
and is continuing in respect of the Issuer Trust, the Company shall pay
the Issuer Trust (and its permitted successors or assigns under the
Trust Agreement) for so long as the Issuer Trust (or its permitted
successor or assignee) is the registered holder of the Outstanding
Securities, such additional sums as may be necessary in order that the
amount of Distributions (including any Additional Amount (as defined in
the Trust Agreement)) then due and payable by the Issuer Trust on the
Preferred Securities and Common Securities that at any time remain
outstanding in accordance with the
- 52 -
<PAGE>
<PAGE>
terms thereof shall not be reduced as a result of such Additional Taxes
(the "Additional Sums"). Whenever in this Indenture or the Securities
there is a reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to include
mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were
or would be payable in respect thereof pursuant to the provisions of
this paragraph and express mention of the payment of Additional Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is
not made; provided, however, that the deferral of the payment of
interest pursuant to Section 3.12 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
Section 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities
that it shall not: (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 Company's capital stock, (b) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company that rank pari passu with or
junior in interest to the Securities, including the Company's
obligations associated with the Preferred Securities, or (c) redeem,
purchase or acquire less than all of the Securities or any of the
Preferred Securities (other than (i) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection
with any employment contract, benefit plan or other similar arrangement
with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
shareholder stock purchase plan or in connection with the issuance of
capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into at least 30 days prior to the applicable
Extension Period, (ii) as a result of a reclassification, exchange
or conversion of any class or series of the Company's capital stock
(or any capital stock of a Subsidiary of the Company) for any
class or series of the Company's capital stock or of any class, (iii)
the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (iv) any declaration
of a dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the redemption
or repurchase of rights pursuant thereto, or (v) any dividend in the
form of stock, warrants, options or other rights where the dividend
stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock), if at such time
(A) there shall have occurred an Event of Default hereunder or any event
(x) of which the Company has actual knowledge that with the giving of
notice or the lapse of time, or both, would constitute an Event of
Default with respect to the Securities, and (y) which the Company shall
not have taken reasonable steps to cure, (B) if the Securities are held
by the Issuer Trust, the Company shall be in default with respect to its
payment of any obligations under the Guarantee relating to the Preferred
Securities issued by the Issuer Trust, or (C) the Company shall have
given notice of its election to begin an Extension Period with respect
to the Securities as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of Securities
issued to the Issuer Trust (a) to hold, directly or indirectly, 100% of
the Common Securities of the Issuer Trust, provided that any permitted
successor of the Company as provided under Section 8.2 may succeed to
the Company's ownership of such Common Securities, (b) as holder of such
Common Securities, not to voluntarily terminate, windup or liquidate the
Issuer Trust, other than (i) in connection with a distribution of the
Securities to the holders of the Preferred Securities in liquidation of
the Issuer Trust, or (ii) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement, and
(c) to use its reasonable efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Issuer Trust to continue
to be classified as a grantor trust for United States federal income tax
purposes.
- 53 -
<PAGE>
<PAGE>
Section 10.8. Federal Tax Reports.
On or before December 15 of each year during which any
Securities are outstanding, the Company shall furnish to each Paying
Agent such information as may be reasonably requested by each Paying
Agent in order that each Paying Agent may prepare the information which
it is required to report for such year on Internal Revenue Service Forms
1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of
1986, as amended. Such information shall include the amount, if any, of
original issue discount includible in income for each authorized minimum
denomination of principal amount at Stated Maturity of outstanding
Securities during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of this Article.
Redemption of Securities as permitted or required by any form
of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided,
however, that, if any provision of any such form of Security shall
conflict with any provision of this Article XI, the provision of such
form of Security shall govern.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less
than 30 nor more than 60 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
and, in the case of Securities held by the Issuer Trust, the Property
Trustee under the Trust Agreement of such date and of the principal
amount of Securities to be redeemed and provide the additional
information required to be included in the notice or notices
contemplated by Section 11.4; provided, that, for so long as such
Securities are held by the Issuer Trust, such notice shall be given not
less than 45 nor more than 75 days prior to such Redemption Date (unless
a shorter notice shall be satisfactory to the Property Trustee under the
Trust Agreement). In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate and an Opinion of Counsel evidencing compliance
with such restriction.
Section 11.3. Selection of Securities to be Redeemed.
(a) If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Security, provided that the unredeemed portion of the principal amount
of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.
(b) The Trustee shall promptly notify the Company in writing
of the Securities selected for partial redemption and the principal
amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate,
- 54 -
<PAGE>
<PAGE>
in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security that has been or is
to be redeemed.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not later than the thirtieth day, and not
earlier than the sixtieth day, prior to the Redemption Date, to each
Holder of Securities to be redeemed, at the address of such Holder as it
appears in the Securities Register.
With respect to Securities to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (if such an estimate of the Redemption Price is
given, a subsequent notice shall be given as set forth above setting
forth the Redemption Price promptly following the calculation thereof);
(c) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Securities to be
redeemed;
(d) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that interest thereon, if any, shall cease to accrue on and after said
date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) such other provisions as may be required in respect of
the terms of the Securities; and
(g) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company and shall be irrevocable. The notice, if mailed in the manner
provided above, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, a failure
to give such notice by mail or any defect in the notice to the Holder of
any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4,
the Company will deposit with the Trustee or with one or more Paying
Agents (or if the Company is acting as its own Paying Agent, the Company
will segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price of, and any accrued
interest (including Additional Interest) on, all the Securities (or
portions thereof) that are to be redeemed on that date.
- 55 -
<PAGE>
<PAGE>
Section 11.6. Payment of Securities Called for Redemption.
(a) If any notice of redemption has been given as provided in
Section 11.4, the Securities or portion of Securities with respect to
which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date. On presentation and
surrender of such Securities at a Place of Payment in said notice
specified, the said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to
the Redemption Date; provided, however, that, installments of interest
(including Additional Interest) whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close
of business on the relevant record dates according to their terms and
the provisions of Section 3.8.
(b) Upon presentation of any Security redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a new Security or
Securities, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having
the same Original Issue Date, Stated Maturity and terms.
(c) If any Security called for redemption shall not be so
paid under surrender thereof for redemption, the principal of and
premium, if any, on such Security shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.
Section 11.7. Right of Redemption of Securities Initially Issued to the
Issuer Trust.
(a) The Company, at its option, may redeem such Securities,
subject to prior regulatory approval, if required (i) on or after
August 2, 2004, in whole at any time or in part from time to time, or
(ii) upon the occurrence and during the continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, at any time
within 90 days following the occurrence and during the continuation of
such Tax Event, Investment Company Event or Capital Treatment Event, in
whole (but not in part), in each case at a Redemption Price specified in
such Security, together with accrued interest (including Additional
Interest) to the Redemption Date.
(b) If less than all the Securities are to be redeemed, the
aggregate principal amount of such Securities remaining Outstanding
after giving effect to such redemption shall be sufficient to satisfy
any provisions of the Trust Agreement.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended
indenture, no sinking fund shall be established or maintained for the
retirement of Securities.
- 56 -
<PAGE>
<PAGE>
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article, the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on each and all of the
Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
Section 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
(a) If the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness
when the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration of acceleration or otherwise,
then, upon written notice of such default to the Company by the holders
of Senior Indebtedness or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist,
no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest (including Additional
Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the
Securities.
(b) In the event of (i) any insolvency, bankruptcy,
receivership, liquidation, reorganization, readjustment, composition or
other similar proceeding relating to the Company, its creditors or its
property, (ii) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings, (iii) any assignment by
the Company for the benefit of creditors or (iv) any other marshalling
of the assets of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be
made to any Holder on account thereof. Any payment or distribution,
whether in cash, securities or other property (other than securities of
the Company or any other entity provided for by a plan of reorganization
or readjustment, the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment),
which would otherwise (but for these subordination provisions) be
payable or deliverable in respect of the Securities shall be paid or
delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
(c) In the event of any Proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company
ranking on a parity with the Securities, shall be entitled to be paid
from the remaining assets of the Company the amounts at the time due and
owing on account of unpaid principal of (and premium, if any) and
interest on the Securities and such other obligations before any payment
or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations
- 57 -
<PAGE>
<PAGE>
of the Company ranking junior to the Securities, and such other
obligations. If, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash,
securities or other property (other than securities of the Company or
any other entity provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in
respect thereof under any plan of reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the
terms hereof and before all Senior Indebtedness shall have been paid in
full, such payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time
outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any
Holder to endorse or assign any such payment, distribution or security,
each holder of Senior Indebtedness is hereby irrevocably authorized to
endorse or assign the same.
(d) The Trustee and the Holders shall take such action
(including, without limitation, the delivery of this Indenture to an
agent for the holders of Senior Indebtedness or consent to the filing of
a financing statement with respect hereto) as may, in the opinion of
counsel designated by the holders of a majority in principal amount of
the Senior Indebtedness at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by
these provisions.
(e) The provisions of this Section 13.2 shall not impair any
rights, interests, remedies or powers of any secured creditor of the
Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
(f) The securing of any obligations of the Company, otherwise
ranking on a parity with the Securities or ranking junior to the
Securities shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with the
Securities or ranking junior to the Securities.
Section 13.3. Payment Permitted if No Default.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at
any time, except during the pendency of the conditions described in the
first paragraph of Section 13.2 or of any Proceeding referred to in
Section 13.2, from making payments at any time of principal of (and
premium, if any) or interest (including Additional Interest) on the
Securities, or (b) the application by the Trustee of any monies
deposited with it hereunder to the payment of or on account of the
principal of (and premium, if any) or interest (including any Additional
Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not
have knowledge that such payment would have been prohibited by the
provisions of this Article.
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become
due on all Senior Indebtedness, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this
Article (equally and ratably with the holders of all indebtedness of the
Company that by its express
- 58 -
<PAGE>
<PAGE>
terms is subordinated to Senior Indebtedness of the Company to
substantially the same extent as the Securities are subordinated to the
Senior Indebtedness and is entitled to like rights of subrogation by
reason of any payments or distributions made to holders of such Senior
Indebtedness) to the rights of the holders of such Senior Indebtedness
to receive payments and distributions of cash, property and securities
applicable to the Senior Indebtedness until the principal of (and
premium if any) and interest (including Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of
any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this
Article, and no payments pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
Section 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
between the Company and the Holders of the Securities, the obligations
of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and
when the same shall become due and payable in accordance with their
terms; (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Preferred Security) from exercising
all remedies otherwise permitted by applicable law upon default under
this Indenture, including filing voting claims in any Proceeding,
subject to the rights, if any, under this Article XIII of the holders of
Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate
the subordination provided in this Article XIII and appoints the Trustee
his or her attorney-in-fact for any and all such purposes.
Section 13.7. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged
with.
(b) Without in any way limiting the generality of Section
13.7(a), the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to such
Holders of the Securities and without impairing or releasing the
subordination provided in this Article XIII or the obligations hereunder
of such Holders of the Securities to the holders of Senior Indebtedness,
do any one or more of
- 59 -
<PAGE>
<PAGE>
the following: (i) change the manner, place or terms of payment or
extent the time of payment of, or renew or alter, Senior Indebtedness,
or otherwise amend or supplement in any manner Senior Indebtedness or
any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 13.8. Notice to Trustee.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment to or by the Trustee in respect
of the Securities. Notwithstanding the provisions of this Article XIII
or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit
the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however,
that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by
the terms hereof any monies may become payable for any purpose
(including, the payment of the principal of (and premium, if any, on) or
interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be
affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
(b) Subject to the provisions of Section 6.1, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior
Indebtedness (or a trustee or attorney-in-fact therefor) to establish
that such notice has been given by a holder of Senior Indebtedness (or a
trustee or attorney-in-fact therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
Section 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction
in which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, conservator, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XIII.
- 60 -
<PAGE>
<PAGE>
Section 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or
to the Company or to any other Person cash, property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness that may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Section 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article XIII shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
Section 13.13. Certain Conversions or Exchanges Deemed Payment.
For purposes of this Article only, (a) the issuance and
delivery of junior securities upon conversion or exchange of Securities
shall not be deemed to constitute a payment or distribution on account
of the principal of (or premium, if any, on) or interest (including any
Additional Interest) on such Securities or on account of the purchase or
other acquisition of such Securities, and (b) the payment, issuance or
delivery of cash, property or securities (other than junior securities)
upon conversion or exchange of a Security shall be deemed to constitute
payment on account of the principal of such security. For the purposes
of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company, and (ii) securities of the Company
that are subordinated in right of payment to all Senior Indebtedness
that may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article.
* * * *
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.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
- 61 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ALLEGIANT BANCORP, INC.
By: /s/ Shaun R. Hayes
--------------------------------------
Shaun R. Hayes
President and Chief Executive Officer
BANKERS TRUST COMPANY, as Trustee
By: /s/ Ednora G. Linares
--------------------------------------
Name: Ednora G. Linares
Title: Assistant Vice President
- 62 -
<PAGE>
- -----------------------------------------------------------
Allegiant Bancorp, Inc.
Allegiant Capital Trust I
_________________________
1,725,000 9.875% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
July 27, 1999
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
Wheat First Securities
- -----------------------------------------------------------
<PAGE>
<PAGE>
Allegiant Bancorp, Inc.
Allegiant Capital Trust I
________________________________
1,725,000 9.875% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
July 27, 1999
EVEREN Securities, Inc.
Wheat First Securities
Individually and as Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
77 West Wacker Drive
Chicago, Illinois 60601-1694
Ladies and Gentlemen:
Allegiant Bancorp, Inc., a Missouri corporation (the "Company"),
and its fiduciary subsidiary, Allegiant Capital Trust I (the "Trust"
and, together with the Company, the "Offerors"), a statutory business
trust organized under the Delaware Business Trust Act (the "Delaware
Act"), confirm their agreement with the several underwriters listed in
Schedule I hereto (the "Underwriters"), for whom EVEREN Securities, Inc.
and Wheat First Securities, a division of First Union Capital Markets
Corp., have been duly authorized to act as representatives, with respect
to the proposed issuance and sale by the Trust of its 9.875% Cumulative
Trust Preferred Securities (liquidation amount $10 per security)
representing undivided beneficial interests in the assets of the Trust
(the "Trust Preferred Securities"). The Offerors propose that the Trust
issue the Trust Preferred Securities pursuant to an Amended and Restated
Trust Agreement among Bankers Trust Company, as property trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware trustee (the
"Delaware Trustee"), the administrators named therein (the
"Administrators") and the Company (the "Trust Agreement"). The Trust
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise
pursuant to a Guarantee Agreement (the "Guarantee Agreement") between
the Company and Bankers Trust Company, as trustee (the "Guarantee
Trustee"). The proceeds of the sale of the Trust Preferred Securities
will be combined with the proceeds from the sale by the Trust to the
Company of the Trust's common securities (the "Common Securities") and
will be used to purchase 9.875% junior
<PAGE>
<PAGE>
subordinated debentures (the "Subordinated Debentures") issued by the
Company pursuant to an Indenture ("Indenture") between the Company and
Bankers Trust Company, as trustee (the "Indenture Trustee"). The
Offerors hereby confirm their respective agreements with the
Underwriters as follows:
1. The Trust Preferred Securities. The 1,500,000 Trust
Preferred Securities proposed to be sold by the Trust are hereinafter
referred to as the "Firm Securities." The Trust also proposes to grant
to the Underwriters an option to purchase up to 225,000 additional Trust
Preferred Securities (the "Additional Securities") if requested by the
Underwriters as provided in Section 3 hereof. The Firm Securities and
the Additional Securities are herein collectively called the
"Securities."
2. Registration Statement and Prospectus. The Offerors have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder (collectively, the "Act"),
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a registration statement on Form S-2 (File Nos. 333-82197 and
333-82197-01) including a prospectus, relating to the Securities, the
Subordinated Debentures and the Guarantee Agreement, that may have been
amended; each such amendment was so prepared and filed. The
registration statement, as amended at the time when it became or becomes
effective, including all financial schedules (if any) and exhibits
thereto, all information incorporated therein by reference and all of
the information (if any) deemed to be part of the registration statement
at the time of its effectiveness pursuant to Rule 430A under the Act
("Rule 430A"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first provided to the
Underwriters by the Offerors in connection with the offering and sale of
the Securities (whether or not required to be filed pursuant to
Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter referred to as
the "Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in connection with
the offering of the Securities that differs from the Prospectus (whether
or not any such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b)), the term "Prospectus" shall refer to
the revised prospectus from and after the time it is first provided to
the Underwriters for such use; and each preliminary prospectus included
in the Registration Statement prior to the time it became or becomes
effective is herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject
to the terms and conditions hereof, (i) the Trust agrees to issue and
sell to the Underwriters, at a price of $10.00 per Security (the
"Purchase Price"), 1,500,000 Firm Securities; and (ii) each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the
Purchase Price, the aggregate number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto. As
compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Securities
(together with the proceeds from the sale by the Trust to the Company of
the Common Securities)
2
<PAGE>
<PAGE>
will be used to purchase the Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date (as herein defined) to the
Underwriters a commission per Security equal to $0.375 per Security, or
$562,500 in the aggregate ($646,875 if the over-allotment with respect
to the Additional Securities is exercised in full).
On the basis of the representations and warranties contained in
this Agreement, and subject to the terms and conditions hereof, (i) the
Trust agrees to sell to the Underwriters, at the Purchase Price, up to
225,000 Additional Securities; and (ii) the Underwriters shall have the
right to purchase, severally and not jointly, from time to time, up to
an aggregate of 225,000 Additional Securities at the Purchase Price.
Additional Securities may be purchased as provided in Section 4 hereof
solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities. If any Additional Securities
are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase the number of Additional Securities that bears the same
proportion to the total number of Additional Securities to be purchased
as the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Securities.
4. Agreements of the Offerors as to Delivery and Payment.
The Offerors agree with each Underwriter that:
(a) Delivery to the Underwriters of, and payment to
the Trust for, the Firm Securities shall be made at 10:00 A.M.,
Chicago time, on the third (or if the Firm Securities are priced,
as contemplated by Rule 15c6-1(c) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m.
Eastern time, on the fourth) full business day (such time and date
being referred to as the "Closing Date") following the date of the
initial public offering of the Firm Securities as advised to you
by the Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for
any Additional Securities to be purchased by the Underwriters
shall be made at such place as you shall designate, at 10:00 A.M.,
Chicago time, on such date or dates (individually, an "Option
Closing Date" and collectively, the "Option Closing Dates"), which
may be the same as the Closing Date but shall in no event be
earlier than the Closing Date, as shall be specified in a written
notice from you to the Offerors of the Underwriters' determination
to purchase a number, specified in said notice, of Additional
Securities. Any such notice may be given at any time within 30
days after the date of this Agreement.
(c) The Securities will be delivered by the Trust to
the Underwriters on the Closing Date or the applicable Option
Closing Date against payment of the Purchase Price therefor by
certified or official bank check or wire transfer of immediately
available funds payable to the order of the Trust to an account
designated by the Trust. Delivery of the Securities may be made
by credit through full fast transfer to the accounts at The
Depository Trust Company designated by
3
<PAGE>
<PAGE>
you. Certificates representing the Securities, in definitive form
and in such denominations and registered in such names as you may
request in writing not less than two business days prior to the
Closing Date or the applicable Option Closing Date notice to the
Offerors shall be prepared and will be made available for
inspection not later than 9:30 A.M., Chicago time, on the business
day next preceding the Closing Date or the applicable Option
Closing Date, with any transfer taxes payable upon initial
issuance or the transfer thereof duly paid by the Company for the
respective accounts of the Underwriters against payment of the
Purchase Price therefor.
5. Further Agreements of the Offerors. The Offerors also
agree with each Underwriter that:
(a) they will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to
the Registration Statement or, if necessary pursuant to Rule 430A
under the Act, a post-effective amendment to the Registration
Statement, as soon as practicable after the execution and delivery
of this Agreement, and will use their best efforts to cause the
Registration Statement or such post-effective amendment to become
effective at the earliest possible time; and the Offerors will
comply fully and in a timely manner with the applicable provisions
of Rule 424(b) and Rule 430A under the Act;
(b) they will advise you promptly and, if requested
by you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent
for filing pursuant to Rule 424 under the Act and when any post-
effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments from the Commission
that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation or, to the
best knowledge of the Offerors, threat of any proceedings for such
purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event
or information becoming known during the period referred to in
paragraph (e) below that makes any statement of a material fact
made in the Registration Statement untrue or that requires the
making of any additions to or changes in the Registration
Statement (as amended or supplemented from time to time) in order
to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making
of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements
therein, not misleading; if at any time the Commission shall issue
or institute proceedings (or threaten to institute any such
proceedings) to issue any stop order suspending the
4
<PAGE>
<PAGE>
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue or
institute proceedings (or threaten to institute proceedings) to
issue an order suspending the qualification or exemption of the
Securities under any state securities or blue sky laws, the
Offerors shall use best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(c) they will furnish to you without charge one
signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits
filed therewith, and will furnish to you and each Underwriter
designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request;
(d) they will not file any amendment or supplement
to the Registration Statement, whether before or after the time
when it becomes effective, or make any amendment or supplement to
the Prospectus of which you shall not previously have been advised
and provided a copy a reasonable period of time prior to the
filing thereof or to which you or your counsel shall reasonably
object, and they will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus that may be
necessary or advisable in connection with the distribution of the
Securities by you in your or your counsel's opinion, and will use
best efforts to cause the same to become effective as promptly as
possible;
(e) promptly after the Registration Statement
becomes effective, and from time to time thereafter for such
period as a prospectus is required by the Act to be delivered in
connection with the sales by an underwriter or a dealer (in the
opinion of your counsel), they will furnish to each Underwriter
and dealer without charge as many copies of the Prospectus (and
any amendment or supplement to the Prospectus) as such Underwriter
or dealer may reasonably request for the purposes contemplated by
the Act, and the Offerors consent to the use of the Prospectus and
any amendment or supplement thereto by any Underwriter or any
dealer, both in connection with the offering or sale of the
Securities and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection
therewith;
(f) if during the period specified in paragraph
(e) any event shall occur or information become known as a result
of which in the opinion of your counsel it becomes necessary to
amend or supplement the Prospectus in order to make the statements
therein as of the date the Prospectus is delivered to a purchaser,
in light of the circumstances under which such statements were
made, not misleading, or it is necessary to amend or supplement
the Prospectus to comply with any law, forthwith to prepare and,
subject to paragraph 5(d) above, they will file with the
Commission at the sole expense of the Company an appropriate
5
<PAGE>
<PAGE>
amendment or supplement to the Prospectus so that the statements
of any material facts in the Prospectus, as so amended and
supplemented, will not when it is so delivered, in light of the
circumstances under which such statements are made, be misleading,
or so that the Prospectus will comply with law and it will furnish
to the Underwriters and to such dealers as the Underwriters shall
specify, at the sole expense of the Company, such number of copies
thereof as such Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Securities,
they will cooperate with you and counsel for the Underwriters in
connection with the registration or qualification of the
Securities for offer and sale by the several Underwriters and by
dealers under the state securities or blue sky laws of such
jurisdictions as you may reasonably request (provided that the
Offerors shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to take
any action that would subject them to general consent to service
of process in any jurisdiction in which they are not now so
subject), and the Offerors will continue such qualification in
effect so long as required by law for the distribution of the
Securities and will file such consents to service of process or
other documents as may be necessary in order to effect such
registration or qualification (provided that the Offerors shall
not be obligated to take any action that would subject it to
general consent to service of process in any jurisdiction in which
they are not now so subject);
(h) they will not, prior to the exercise in full or
termination or expiration of the option to purchase the Option
Securities, incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in
the ordinary course of business, except as contemplated by the
Prospectus;
(i) they will make generally available to their
security holders and furnish to the Underwriters as soon as
reasonably practicable a consolidated earning statement covering a
period of at least 12 months beginning after the "effective date"
(as defined in Rule 158 under the Act) of the Registration
Statement (but in no event commencing later than 90 days after
such date) that will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and will advise you in writing
when such statement has been made so available;
(j) during the period of five years after the date
of this Agreement, they will furnish to you a copy: (i) as soon
as practicable after the filing thereof, of each report filed by
either of the Offerors with the Commission, any securities
exchange or the National Association of Securities Dealers, Inc.
("NASD"); (ii) as soon as practicable after the release thereof,
of each material press release in respect of either of the
Offerors; (iii) as soon as available, of each report of the
Company mailed to shareholders; and (iv) as soon as available,
such other publicly available information concerning the Offerors
as you may reasonably request;
6
<PAGE>
<PAGE>
(k) whether or not the transactions contemplated
hereby are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, to pay all costs, fees,
expenses and taxes incident to the performance by the Offerors of
their obligations hereunder, including (i) the preparation,
printing, filing and distribution under the Act of the
Registration Statement (including financial statements and
exhibits), each Preliminary Prospectus and all amendments and
supplements to any of them prior to or during the period specified
in paragraph (e) above of this Section 5, (ii) the word
processing, reproduction and distribution of this Agreement, the
Blue Sky Survey and any other agreements, memoranda,
correspondence and other documents prepared and delivered by the
Underwriters or their counsel in connection with the offering of
the Securities (including in each case any disbursements of
counsel for the Underwriters relating to such preparation and
delivery), (iii) the registration or qualification of the
Securities for offer and sale under the securities or blue sky
laws of the several states, including in each case the fees and
disbursements of counsel for the Underwriters, relating to such
registration or qualification and memoranda relating thereto;
provided however, in no event shall such fees and disbursements
exceed $5,000, (iv) filings and clearance with the NASD in
connection with the offering and sale of the Securities, (v) the
listing of the Securities on the American Stock Exchange ("AMEX"),
(vi) furnishing such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Securities by the Underwriters or by
dealers to whom the Securities may be sold, (vii) obtaining the
opinions to be provided pursuant to Sections 8(f), 8(g) and 8(h)
of this Agreement and (viii) the performance by the Offerors of
all of their other obligations under this Agreement; provided that
if the sale of the Securities provided for herein is not
consummated because the Underwriters exercise their right to
terminate this Agreement pursuant to Section 9 hereof and any of
the following have occurred during the term of this Agreement:
(a) there has been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business or prospects
of the Company, or (b) either Offeror shall refuse or be unable to
comply with any provision hereof (except as the result of a breach
of this Agreement by the Underwriters), the Company will promptly
reimburse the Underwriters upon demand for all reasonable out-of-
pocket expenses (including the fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of
Securities;
(l) they will use the net proceeds received by them
from the sale of the Securities and the Subordinated Debentures in
the manner specified in the Prospectus and will file such reports
with the Commission with respect to the application of the
proceeds therefrom as may be required in accordance with Rule 463
under the Act and will furnish you copies of any such reports as
soon as practicable after the filing thereof;
7
<PAGE>
<PAGE>
(m) if, at the time of effectiveness of the
Registration Statement, any information shall have been omitted
therefrom in reliance upon Rule 430A, then immediately following
the execution and delivery of this Agreement, they will prepare,
and file, or transmit for filing with the Commission in accordance
with such Rule 430A and Rule 424(b), copies of an amended
prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including an amended
prospectus), containing all information so omitted;
(n) they will cause the Securities to be listed,
subject to notice of issuance or sale, on AMEX and will comply
with all registration, filing and reporting requirements of AMEX;
(o) they will not take, directly or indirectly, any
action designed to or which might reasonably be expected to
constitute, cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of either Offeror to facilitate the sale or resale of the
Securities;
(p) they will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if either of
them commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba, with such
information to be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously
reported information;
(q) they will use their best efforts to do and
perform all things required to be done and performed under this
Agreement by them prior to or after the Closing Date or any Option
Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Securities;
(r) the Offerors will not distribute any prospectus
or other offering material in connection with the offering and
sale of the Securities other than any Preliminary Prospectus or
the Prospectus or other materials permitted by the Act to be
distributed by the Company; and
(s) in the event that the Subordinated Debentures
are distributed to the holders of the Securities for any reason,
the Offerors will use their respective best efforts to cause the
Subordinated Debentures to be listed, subject to notice of
issuance, at the time of such distribution, upon the American
Stock Exchange, such other securities exchange or exchanges and/or
the Nasdaq National Market upon which the Securities are then
listed. The Company will thereafter comply with all registration,
filing and reporting requirements of the American Stock Exchange
or such other exchange or Nasdaq National Market upon which the
Subordinated Debentures are listed.
8
<PAGE>
<PAGE>
6. Representations and Warranties.
(a) The Offerors jointly and severally represent and
warrant to, and agree with, each Underwriter as of the date
hereof, the Closing Date and each Option Closing Date (except for
such representations that are specified as being made as of a
particular date) as follows:
(i) The Commission has not issued any order
preventing or suspending the use of any Preliminary
Prospectus relating to the proposed offering of the
Securities nor instituted or threatened any proceedings
for that purpose. The Registration Statement, on the
date it was or is declared effective by the Commission,
each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in
connection with the offering and sale of the securities)
and at the Closing Date and each Option Closing Date,
conformed or will conform with the requirements of the
Act, the Rules and Regulations and the Trust Indenture
Act and the rules and regulations thereunder. The
Registration Statement, on the date it was or is declared
effective by the Commission, upon the filing or first
delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus) and at the Closing Date and
each Option Closing Date did not or will not contain an
untrue statement of 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;
each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in
connection with the offering and sale of the Securities)
and at the Closing Date and each Option Closing Date did
not and will not include an untrue statement of material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading; provided that the foregoing
shall not apply to statements in or omissions from the
Registration Statement and the Prospectus made or omitted
in reliance upon, and in conformity with, information
relating to the Underwriters furnished in writing or via
electronic mail to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
The Offerors hereby acknowledge for all purposes under
this Agreement that (A) the statements set forth under
the caption "Underwriting" in the Prospectus and (B) the
stabilization legend on page 3 of the Prospectus
constitute the only written information furnished to the
Offerors by or on behalf of the Underwriters for use in
the preparation of the Registration Statement or the
Prospectus or any amendment or supplement thereto.
9
<PAGE>
<PAGE>
(ii) The Company has been duly organized and
is a validly existing corporation in good standing under
the laws of Missouri and is duly registered as a bank
holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act"), supervised by the Board
of Governors of the Federal Reserve System (the "FRB").
Allegiant Bank (the "Bank"), Allegiant Real Estate
Investment Trust (the "REIT"), Allegiant Investment
Company ("AIC"), Allegiant Insurance Services Co.
("AISC") and Kratky Road, Inc. (together with the Bank,
the REIT, AIC and AISC, collectively, the "Subsidiaries")
and the Trust constitute the only subsidiaries of the
Company. Each Subsidiary has been duly organized and is
validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization, as the
case may be. Each of the Company and its Subsidiaries
has full power and authority, corporate or otherwise, to
own or lease its properties and assets and to conduct its
business as described in the Registration Statement and
the Prospectus and is duly qualified to do business and
in good standing in each jurisdiction in which it owns or
leases real property or in which the conduct of its
business or the ownership or leasing of property requires
such qualification, except where the failure to be so
qualified, either individually or in the aggregate, would
not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects,
net worth or results of operations of the Trust, the
Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect"). Other than the Trust and the
Subsidiaries, the Company owns no capital stock or other
equity, ownership or proprietary interest in any company,
partnership, association, trust or other entity. The
accounts of the Bank are insured by the Bank Insurance
Fund and the Savings Association Insurance Fund of the
Federal Deposit Insurance Corporation (the "FDIC") up to
the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for
the termination or revocation of such membership or
insurance are pending, or, to the best knowledge of the
Offerors, threatened.
(iii) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Act with full trust power and
authority to own property and to conduct its business as
described in the Registration Statement and Prospectus
and to enter into and perform its obligations under this
Agreement, the Securities, the Common Securities and the
Trust Agreement and is authorized to do business in each
jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a
Material Adverse Effect. The Trust has conducted and
will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the
Prospectus. The Trust is not a party to or otherwise
bound by any agreement other than those described in the
Prospectus. Based upon federal income tax law as of the
date hereof, as of the Closing and as of
10
<PAGE>
<PAGE>
any Option Closing Date, the Trust is and will be
classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a
corporation. Based upon GAAP (as defined herein) as of
the date hereof, as of the Closing Date and as of any
Option Closing Date, the Trust is and, immediately after
the offering and the sale of the Securities, will be
treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(iv) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, (A) none of the Offerors or the Subsidiaries
has incurred any material liabilities or obligations,
direct or contingent, or entered into any material
transactions not in the ordinary course of business, nor
purchased any of its outstanding capital stock or
declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or
otherwise (other than the $.05 cash dividend per common
share declared by the Company on April 1, 1999 and July
1, 1999 and paid on April 15, 1999 and July 15, 1999,
respectively), and (B) there has not been any material
adverse change in either Offeror's or any Subsidiary's
condition (financial or otherwise), business, affairs,
prospects or results of operations or any material change
in their respective capital stock, short-term debt or
long-term debt.
(v) The Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will
have been duly executed by the Company and, when
authenticated in the manner provided in the Indenture and
delivered against payment therefor as described in the
Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in
accordance with their terms, except as enforceability of
the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general
equity principles, will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will
conform in all material respects to the statements
relating thereto in the Prospectus.
(vi) The Common Securities have been duly
authorized by the Trust and, when issued and delivered by
the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus,
will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will
conform in all material respects to the statements
relating thereto contained in the Prospectus. The
issuance of the Common Securities is not subject to
preemptive or other similar rights. At the Closing Date
all of the issued and outstanding Common Securities of
11
<PAGE>
<PAGE>
the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vii) The Securities have been duly authorized
by the Trust Agreement and, when issued and delivered
pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued
and fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits
of the Trust Agreement and will in all material respects
conform to the statements relating thereto contained in
the Prospectus. The issuance of the Securities is not
subject to preemptive or other similar rights. Holders
of Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to
stockholders of a private corporation for profit.
(viii) Each of this Agreement, the Indenture,
the Trust Agreement and the Guarantee Agreement has been
duly authorized, executed and delivered by the Company
and/or the Trust, as the case may be, and constitutes a
legal, valid and binding obligation of the Company and/or
the Trust, as the case may be, enforceable in accordance
with its terms, except as enforceability of the same may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors'
rights generally and by general equity principles. Each
Offeror has full power and authority to enter into this
Agreement, the Indenture, the Trust Agreement and the
Guarantee Agreement, as the case may be, and, in the case
of the Trust, to authorize, issue and sell the Securities
as contemplated by this Agreement, and each of the
Indenture and the Trust Agreement has been duly qualified
under the Trust Indenture Act and will conform in all
material respects to the statements relating thereto in
the Registration Statement and the Prospectus.
(ix) Neither the Company nor any Subsidiary is
in violation of its respective Articles of Incorporation,
charter or by-laws. The Trust is not in violation of the
Trust Agreement or its certificate of trust filed with
the State of Delaware on June 30, 1999 (the "Certificate
of Trust"). Neither Offeror nor any Subsidiary is in
violation of or in breach of or in default in (nor has
any event occurred that with notice or lapse of time, or
both, would be a breach of or a default in) the
performance of any obligation, agreement or condition
contained in any agreement, lease, contract, permit,
license, franchise agreement, mortgage, loan agreement,
debenture, note, deed of trust, bond, indenture or other
evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments")
to which any of them is a party or by which any of them
or any of their respective properties or assets is bound
or affected (except for such contravention or default as
would not have a Material Adverse Effect). Neither
Offeror nor any Subsidiary is in violation of any
statute, judgment,
12
<PAGE>
<PAGE>
decree, order, rule or regulation (collectively, "Laws")
applicable to any of them or any of their respective
properties or assets that, alone, or together with other
violations of Laws would result in a Material Adverse
Effect. To the best knowledge of the Offerors, no other
party under any contract or other agreement to which
either Offeror or any Subsidiary is a party is in
material default thereunder except for such defaults as
would not individually or in the aggregate result in a
Material Adverse Effect.
(x) The execution, delivery and performance of
this Agreement, the Indenture, the Trust Agreement and
the Guarantee Agreement and the consummation of the
transactions contemplated hereby or thereby will not,
alone or upon notice or the passage of time or both,
(A) require any consent, approval, authorization or other
order of any court, regulatory body, administrative
agency or other governmental body or third party (except
such as may be required under the Act and the securities
or blue sky laws of the various states or by the NASD),
(B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or
assets of either Offeror pursuant to the terms and
provisions of any Obligation or Instrument, (C) conflict
with or constitute a breach or default under any
Obligation or Instrument to which either Offeror is a
party or by which either of them or any of their
respective properties or assets is bound (except for such
creation, conflict, breach or default as would not have a
Material Adverse Effect), or conflict with or result in a
breach or violation of any of the terms and provisions of
the Company's Articles of Incorporation, as amended, or
by-laws, the Trust's Trust Agreement or its Certificate
of Trust, or (D) assuming compliance with the Act and all
applicable state securities or Blue Sky laws, violate or
conflict with any Laws applicable to the Company or any
of its properties or assets (except for such violation or
conflict as would not have a Material Adverse Effect).
No action, suit or proceeding before any court or
arbitrator or any governmental body, agency or official
(domestic or foreign) is pending against or, to the best
knowledge of the Offerors, threatened against either
Offeror, that, if adversely determined, could reasonably
be expected to in any manner invalidate this Agreement,
the Indenture, the Trust Agreement or the Guarantee
Agreement.
(xi) Except as set forth in the Prospectus,
there is no action, suit, proceeding, inquiry or
investigation, governmental or otherwise, before any
court, arbitrator or governmental agency or body
(collectively, "Proceedings") pending to which either
Offeror or any Subsidiary is a party or to which any of
their respective properties or assets are subject, that,
if determined adversely to them, might result in a
Material Adverse Effect, or that seeks to restrain,
enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of any of the Securities
to be sold
13
<PAGE>
<PAGE>
hereunder, and, to the best knowledge of the Offerors, no
such Proceedings are threatened or contemplated.
(xii) There is no contract, document,
agreement or transaction to which either Offeror or any
Subsidiary is a party, or that involved or involves any
of them or any of their respective properties or assets
that is required to be described in or filed as exhibits
to the Registration Statement or the Prospectus by the
Act or the Rules and Regulations that have not been so
described or filed.
(xiii) No action has been taken with respect
to either Offeror, and, to the best knowledge of the
Offerors, no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency
that suspends the effectiveness of the Registration
Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the
sale of the Securities in any jurisdiction referred to in
Section 5(g) hereof. No injunction, restraining order or
order of any nature by a federal or state court of
competent jurisdiction has been issued with respect to
either Offeror that might prevent the issuance of the
Securities, suspend the effectiveness of the Registration
Statement, prevent or suspend the use of any Preliminary
Prospectus or the Prospectus or suspend the sale of the
Securities in any jurisdiction referred to in
Section 5(g) hereof; and every request of the Commission,
or any securities authority or agency of any
jurisdiction, for additional information (to be included
in the Registration Statement or the Prospectus or
otherwise) has been complied with in all material
respects).
(xiv) All of the issued and outstanding shares
of capital stock of the Company are duly authorized and
are validly issued, fully paid and non-assessable, have
been issued in compliance with all federal and state
securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the holders
thereof are not subject to personal liability by reason
of being such holders. The authorized, issued and
outstanding capital stock of the Company is as set forth
in the Registration Statement and Prospectus under the
caption "Capitalization." Except as otherwise stated in
the Registration Statement and Prospectus, there are no
preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer
of, any shares of the Company's capital stock pursuant to
the Company's Articles of Incorporation, as amended, by-
laws or any agreement or other instrument to which the
Company is a party to by which the Company is bound.
Neither the filing of the Registration Statement nor the
offering or sale of the Subordinated Debentures or
Securities as contemplated by this Agreement gives rise
to any rights for or relating to the registration of any
shares of capital stock of the Company. All of the
issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly
14
<PAGE>
<PAGE>
authorized and issued and are fully paid and
nonassessable, and the Company owns of record and
beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances,
all of the issued and outstanding shares of such stock.
Except as described in the Registration Statement and the
Prospectus and except for stock options granted to
employees and directors of the Company and the
Subsidiaries (which have been disclosed in the
Registration Statement to the extent required by the Act
or the Exchange Act), there are no options, warrants,
agreements, contracts or other rights in existence to
purchase or acquire from the Company or any Subsidiary
any shares of the capital stock of the Company or such
Subsidiary.
(xv) The Indenture, the Trust Agreement and
the Guarantee Agreement are in substantially the
respective forms filed as exhibits to the Registration
Statement.
(xvi) The Company's obligations under the
Guarantee Agreement are subordinated and junior in right
of payment to all Senior Indebtedness (as defined in the
Indenture) of the Company.
(xvii) The Subordinated Debentures are
subordinate and junior in right of payment to all Senior
Indebtedness of the Company.
(xviii) Each of the Administrators is an
employee of the Company and has been duly authorized by
the Company to execute and deliver the Trust Agreement.
(xix) Neither Offeror nor any Subsidiary has
violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental
Laws") that, in each case or in the aggregate, might
result in a Material Adverse Effect. None of the
property owned or leased by either Offeror or any
Subsidiary is contaminated with any waste or hazardous
substances that might reasonably be expected to result in
a Material Adverse Effect, nor may either Offeror or any
Subsidiary be deemed an "owner or operator" of a
"facility" or "vessel" that owns, possesses, transports,
generates, discharges or disposes of a "hazardous
substance" as those terms are defined in Section 9601 of
the Comprehensive Response Compensation and Liability Act
of 1980, U.S.C. Section 9601 et seq., except as would not
reasonably be expected to result in a Material Adverse
Effect.
(xx) Each of the Company and the Subsidiaries
is in compliance in all material respects with all
presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"). No "reportable event" (as defined in ERISA)
has occurred with respect to
15
<PAGE>
<PAGE>
any "pension plan" (as defined in ERISA) which would have
a Material Adverse Effect for which the Company or any
Subsidiary would have any liability. Neither the Company
nor any Subsidiary has incurred or expects to incur
liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan,"
or (B) Section 412 or 4971 of the Internal Revenue Code
or 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"), in
each case which is not reasonably likely to have a
Material Adverse Effect. Each "pension plan" for which
the Company or any Subsidiary would have any liability
that is intended to be qualified under Section 501(a) of
the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification,
except for such losses as would not have a Material
Adverse Effect.
(xxi) The Offerors and the Subsidiaries hold
such permits, licenses, franchises and authorizations of
governmental or regulatory authorities or third parties
("Permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own,
lease and operate their respective properties and assets
and to conduct their respective businesses, except where
the failure to have any such Permit would not have a
Material Adverse Effect. The Offerors and the
Subsidiaries have fulfilled and performed all of their
respective material obligations with respect to such
Permits, and no event has occurred that allows, or after
notice or lapse of time or both, would allow revocation
or termination thereof or result in any other material
impairment of the rights of the holder of any such
Permit.
(xxii) Neither of the Offerors nor any
Subsidiary is an "investment company", a company
"controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(xxiii) The Offerors and the Subsidiaries have
good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions (except liens for
taxes not yet due and payable) to all property and assets
described in the Registration Statement as being owned by
them, except as described or referred to in the
Prospectus. All leases to which either Offeror or any
Subsidiary is a party are, subsisting, valid and binding
and no default of such Offeror or Subsidiary or, to the
best knowledge of the Offerors, any other person has
occurred or is continuing thereunder that might
reasonably be expected to result in a Material Adverse
Effect. Such Offeror or Subsidiary enjoys peaceful and
undisturbed possession under all such leases to which
they are a party as lessee with such exceptions as do not
materially interfere with the use made thereof by such
Offeror or Subsidiary.
16
<PAGE>
<PAGE>
(xxiv) The Offerors and the Subsidiaries
maintain reasonably adequate insurance for the conduct of
their respective businesses in accordance with prudent
business practices with reputable third-party insurers.
(xxv) To the best knowledge of the Offerors,
Ernst & Young LLP and BDO Seidman, LLP, the accounting
firms that have certified or reviewed, or shall certify
or review, the financial statements and supporting
schedules filed or to be filed with the Commission as
part of the Registration Statement and the Prospectus,
are independent public accounting firms with respect to
the Trust, the Company and the Subsidiaries as required
by the Act.
(xxvi) The consolidated financial statements
of the Company, together with related notes and schedules
of the Company included in the Registration Statement and
the Prospectus, comply in all material respects with the
requirements of the Act and the Exchange Act, are
accurate and present fairly the financial position,
results of operations and cash flows of the Company at
the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance
with generally accepted accounting principles ("GAAP"),
consistently applied throughout the periods involved, and
all adjustments necessary for a fair presentation of
results for such periods have been made. The summary and
selected financial and other data included in the
Registration Statement and the Prospectus present fairly
the information shown therein and, as applicable, have
been compiled on a basis consistent with the audited
financial statements included therein.
(xxvii) No holder of any security of either
Offeror has any right to require inclusion of any such
security in the Registration Statement. There are no
preemptive rights with respect to the offering being made
by the Prospectus.
(xxviii) No labor dispute with the employees
of either Offeror or any Subsidiary exists, or to the
best knowledge of the Offerors, is imminent, that could
reasonably be expected to result in a Material Adverse
Effect.
(xxix) Each of the Offerors and each
Subsidiary has filed or caused to be filed, or has
properly filed extensions for, all foreign, federal,
state and local income, value added and franchise tax
returns and has paid all taxes and assessments shown
thereon as due, except for such taxes and assessments as
are disclosed or adequately reserved against and that are
being contested in good faith by appropriate proceedings,
promptly instituted and diligently conducted. All
material tax liabilities are adequately
17
<PAGE>
<PAGE>
provided for on the books of such Offeror or Subsidiary,
and there is no material tax deficiency that has been or
might be asserted against any of them that is not so
provided for.
(xxx) The Offerors and the Subsidiaries own or
possess, or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or
unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and
trade names (collectively, "Patents and Proprietary
Rights") currently employed by them in connection with
the businesses they now operate, except where the failure
to so own, possess or acquire such Patents and
Proprietary Rights would not have a Material Adverse
Effect. Neither of the Offerors nor any Subsidiary has
received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights
that, if the subject of any unfavorable decision, ruling
or finding, singly or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
(xxxi) Each Offeror and each Subsidiary is
conducting and intends to conduct its business so as to
comply in all material respects with applicable federal,
state, local and foreign government Laws, except where
the failure to comply would not have a Material Adverse
Effect. Except as set forth in the Registration
Statement and the Prospectus, neither of the Offerors nor
any Subsidiary is charged with or, to the best knowledge
of the Offerors, under investigation with respect to, any
material violation of any such Laws.
(xxxii) Neither Offeror has taken, directly or
indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause
or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any
security of either Offeror to facilitate the sale or
resale of the Securities.
(xxxiii) None of the Offerors, any Subsidiary
nor, to the best knowledge of the Offerors, any employee
or agent of any of them has made any payment of funds of
such Offeror or Subsidiary or received has retained any
funds in violation of any Law, rule or regulation
(including, without limitation, the Foreign Corrupt
Practices Act) or of a character required to be disclosed
in the Prospectus. Neither of the Offerors nor any
Subsidiary has, at any time during the past five years,
(A) made any unlawful contributions to any candidate for
any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any
unlawful payment to state, federal or foreign government
officer or officers, or other person charged with similar
public or quasi-public duty.
18
<PAGE>
<PAGE>
(xxxiv) Each of the Company and the
Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
GAAP and to maintain asset accountability, and
(iii) access to assets is permitted only in accordance
with management's general or specific authorization.
(xxxv) The Offerors have not distributed any
prospectus or other offering material in connection with
the offering and sale of the Securities other than any
Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the
Company.
(xxxvi) Other than as contemplated by this
Agreement or described in the Registration Statement,
neither Offeror has incurred any liability for any
finder's or broker's fee or agent's commission in
connection with the execution and delivery of this
Agreement or the consummation of the transactions
contemplated hereby.
(xxxvii) The Bank is in good standing with the
Division of Finance of the State of Missouri (the
"Division of Finance"); each of the other Subsidiaries is
in good standing with the Secretary of State of its state
of incorporation or organization, as the case may be; and
the activities of the Company and the Subsidiaries are
permitted under applicable federal and state banking laws
and regulations. The Company has all necessary approvals,
including the approvals of the Division of Finance and/or
the FRB, as applicable, to own the capital stock of the
Subsidiaries. Neither the Company nor any of the
Subsidiaries is a party or subject to any agreement or
memorandum with, or directive or order issued by, the
FRB, the Division of Finance, the FDIC or any other
regulatory authority having jurisdiction over it (the
"Regulators"), which imposes any restrictions or
requirements not generally applicable to entities of the
same type as the Company and the Subsidiaries. Neither
the Company nor any Subsidiary is subject to any
directive from any Regulator to make any material change
in the method of conducting their respective businesses,
and no such directive is pending or, to the best
knowledge of the Offerors, threatened by such Regulators.
(xxxviii) The Offerors expect that the
Securities will qualify as "Tier 1" capital (as defined
in 12 C.F.R. Part 325 and subject to the limitations set
forth therein) to the extent described under
"Capitalization" in the Prospectus.
(xxxix) The Bank has properly administered, in
all material respects, all accounts for which it acts as
a fiduciary, including, but not limited to,
19
<PAGE>
<PAGE>
accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of
the governing documents and applicable state and federal
law and regulation and common law. Neither the Bank nor
any of its directors, officers or employees has committed
any material breach of trust with respect to any such
fiduciary account, and the accountings for each such
fiduciary account are true and correct in all material
respects and accurately reflect the assets of such
fiduciary account in all material respects.
(xl) The conditions for use of Form S-2, as
set forth in the General Instructions thereto, have been
satisfied.
(xli) The Offerors and the Subsidiaries are in
compliance with all provisions of Section 1 of Florida
Statutes, Section 517.075, An Act Relating to Disclosure
of Doing Business with Cuba.
(b) Any certificate signed by any officer of the
Company or a trustee of the Trust and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty jointly
and severally made by the Offerors to each Underwriter as to the matters
covered thereby and shall be deemed incorporated herein in its entirety
and shall be effective as if such representation and warranty were made
herein.
7. Indemnification.
(a) The Offerors jointly and severally agree to
indemnify and hold harmless each of the Underwriters and each
person, if any, who controls each of the Underwriters within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
(the "indemnified parties") from and against any and all losses,
claims, damages, liabilities and judgments caused by, arising out
of, related to or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (as amended or supplemented if the Offerors shall have
furnished any amendments or supplements thereto), including the
information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable, or the
Prospectus or any Preliminary Prospectus or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that the Offerors shall not be
liable in any such case to the extent that such losses, claims,
damages, liabilities or judgments are caused by an untrue
statement or omission made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters
furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
20
<PAGE>
<PAGE>
(b) In case any action shall be brought against any
of the indemnified parties, based upon any Preliminary Prospectus,
the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be
sought against the Offerors, such indemnified parties shall
promptly notify the Offerors in writing (but the failure so to
notify shall not relieve the Offerors of any liability that they
may otherwise have to such indemnified parties under this
Section 7 (although the Offerors' liability to an indemnified
party may be reduced on a monetary basis to the extent, but only
to the extent, they have been prejudiced by such failure on the
part of such indemnified party)) and the Offerors shall promptly
assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified parties shall each have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such indemnified parties unless (i) the
employment of such counsel shall have been specifically authorized
by the Offerors, (ii) the Offerors shall have failed to assume
promptly the defense or to employ counsel reasonably satisfactory
to such indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both the
indemnified parties and the Offerors, and an indemnified party
shall have been advised by counsel that there may be one or more
legal defenses available to one or more of the indemnified parties
that are different from or additional to those available to the
Offerors (in which case the Offerors shall not have the right to
assume the defense of such action on behalf of such indemnified
party, it being understood, however, that the Offerors 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 fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for the indemnified
parties, which firm shall be designated in writing by you and that
all such fees and expenses shall be reimbursed promptly as they
are incurred). The Offerors shall not be liable for any settlement
of any such action effected without their written consent, which
consent shall not be unreasonably withheld, but if settled with
the written consent of the Offerors, the Offerors agree to
indemnify and hold harmless the indemnified parties from and
against any and all loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph,
the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 10 business days
after delivery by registered or certified mail to the proper
address for notice to such indemnifying party of the aforesaid
request (whether or not such delivery is accepted) and (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written
21
<PAGE>
<PAGE>
consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional and complete release in
writing of such indemnified party from any and all liability on
claims that are the subject matter of such proceeding, which such
settlement shall be in form and substance satisfactory to the
indemnified party. The indemnification provided in this Section 7
shall be in addition to any liability which the Offerors may
otherwise have.
(c) The Underwriters agree, severally and not
jointly, to indemnify and hold harmless the Offerors and their
directors, officers and trustees who sign the Registration
Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
Offerors to the Underwriters but only with reference to
information stated in or omitted from the Registration Statement,
the Prospectus or any Preliminary Prospectus in reliance upon, and
in conformity with, information relating to the Underwriters
furnished in writing or via electronic mail to the Offerors by or
on behalf of the Underwriters with your consent expressly for use
therein. In case any action shall be brought against the Offerors
or any other such person based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters
shall have the rights and duties given to the Offerors by
Section 7(b) hereof (except that if the Offerors shall have
assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), and the
Offerors and such other persons shall have the rights and duties
given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is for any reason unavailable to an indemnified party or
insufficient to hold such indemnified party harmless in respect of
any losses, claims, damages, liabilities or judgments 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 and judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Offerors on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided
in 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 Underwriters on the
other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the
Offerors
22
<PAGE>
<PAGE>
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering and sale of the Securities (before deducting expenses)
received by the Offerors on the one hand, and the total
underwriting commissions received by the Underwriters on the
other, bears to the total price to the public of the Securities,
in each case as set forth on the cover page of the Prospectus.
The relative fault of the Offerors and the Underwriters shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
the alleged omission to state a material fact relates to
information supplied by the Offerors or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph 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 Section 7, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation in this
Section 7(d) to contribute are several in proportion to the respective
amounts of Securities purchased hereunder by each Underwriter and not
joint.
8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the Closing Date and the Option Securities on any Option
Closing Date are subject to the fulfillment of each of the following
conditions on or prior to the Closing Date and each Option Closing Date:
(a) All the representations and warranties of the
Offerors contained in this Agreement and in any certificate
delivered hereunder shall be true and correct on the Closing Date
and each Option Closing Date with the same force and effect as if
made on and as of the Closing Date or Option Closing Date, as
applicable, except for any such representations and warranties
made as of a specified date, which shall be true and correct as of
such date. The Offerors shall not have failed at or prior to the
Closing Date or Option Closing Date, as applicable, to perform or
23
<PAGE>
<PAGE>
comply in all respects with any of the agreements herein contained
and required to be performed or complied with by them at or prior
to the Closing Date or Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at
the time of the execution and delivery of this Agreement, the
Registration Statement shall have become effective (or, if a post-
effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become
effective) not later than 4:30 P.M., Chicago time, on the date
immediately following the date of this Agreement or such later
time as you may approve in writing or, if the Registration
Statement has been declared effective prior to the execution and
delivery hereof in reliance on Rule 430A, the Prospectus shall
have been filed as required thereby, if necessary; and at the
Closing Date and each applicable Option Closing Date, no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or, to the best
knowledge of the Underwriters and the Offerors, threatened by the
Commission. Every request for additional information on the part
of the Commission shall have been complied with to the
Underwriters' satisfaction. No stop order suspending the sale of
the Securities in any jurisdiction referred to in Section 5(g)
shall have been issued, and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(c) The Securities shall have been qualified for sale
under the blue sky laws of such states as shall have been
specified by you in accordance with Section 5(g).
(d) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Securities
hereunder, the execution and delivery of this Agreement and all
corporate proceedings and other legal matters incident thereto,
and the form of the Registration Statement and the Prospectus
(except financial statements) shall have been approved by counsel
for the Underwriters exercising reasonable judgment, and no
Underwriter shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of material fact, or omits
to state a fact that in your opinion is material and is required
to be stated therein or is necessary to make the statements
therein not misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material change, or
any material development involving a prospective change, in or
affecting particularly the business or properties of the Offerors
or the Subsidiaries, whether or not arising in the ordinary course
of business, that, in your judgment, makes it impractical or
inadvisable to proceed with the public offering or purchase of the
Securities as contemplated hereby.
24
<PAGE>
<PAGE>
(f) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Thompson Coburn LLP, counsel
for the Offerors, to the effect that:
(i) The Company has been duly organized and is
a validly existing corporation in good standing under the
laws of Missouri. Each of the Subsidiaries (other than
the Trust) has been duly organized and is validly
existing as a bank or other entity in good standing under
the laws under which it was organized. Each of the
Company and the Subsidiaries (other than the Trust) has
all necessary power and authority, corporate or
otherwise, to own, lease and operate their respective
properties and assets and to conduct their respective
businesses as described in the Registration Statement and
the Prospectus, and each is duly qualified to do business
as a foreign corporation or other applicable form of
business organization and is in good standing in each
jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such
qualification necessary, except when the failure to so
qualify would not have a Material Adverse Effect.
(ii) Each Offeror has all necessary power and
authority, corporate, trust or otherwise, to enter into
and perform this Agreement, the Indenture, the Trust
Agreement and the Guarantee Agreement, as applicable, and
to effect the transactions contemplated hereby or
thereby. The performance of the Offerors' respective
obligations hereunder and under the Indenture, the Trust
Agreement and the Guarantee Agreement, as applicable,
have been duly authorized by all necessary action. This
Agreement, the Indenture, the Trust Agreement and the
Guarantee Agreement have been duly executed and delivered
by and on behalf of the Trust and/or the Company, as
applicable, and, assuming due authorization, execution
and delivery of such agreements by the other parties
thereto, constitute legal, valid and binding agreements
of the Trust and/or the Company, as applicable,
enforceable in accordance with their respective terms,
except as enforceability of the same may be limited by
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors'
rights generally and by general equity principles and
limitations under the Act as to the enforceability of
indemnification provisions. No approval, consent, order,
authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental
body or, to the best of such counsel's knowledge, after
due inquiry, third party, is necessary in connection with
the execution and delivery of this Agreement, the
Indenture, the Trust Agreement or the Guarantee Agreement
and the consummation of the transactions contemplated
herein or therein or as contemplated by the Prospectus
(other than as may be required by the Trust Indenture
Act, the
25
<PAGE>
<PAGE>
NASD or as required by state securities or blue sky laws,
as to which such counsel need express no opinion) except
such as have been obtained or made, with counsel
specifying the same.
(iii) The authorized capital stock of the
Company is as set forth in the Prospectus under
"Capitalization". Based solely upon a certificate
received from the Company's transfer agent, the issued
and outstanding capital stock of the Company is as set
forth in the Prospectus under "Capitalization". All of
the shares of outstanding capital stock of the Company
have been duly authorized and validly issued, are non-
assessable and were not issued in violation of any
preemptive rights or, to the best of such counsel's
knowledge, other rights to subscribe for or purchase
securities. The shares of outstanding capital stock of
the Company indicated on Schedule II hereto and, based
solely upon a certificate received from the Company, all
other outstanding shares of capital stock of the Company
are fully paid. Except as set forth in the Registration
Statement and the Prospectus and except for stock options
granted to employees and directors of the Company and the
Subsidiaries (which have been described in the
Registration Statement to the extent required by the Act
or the Exchange Act), to the best of such counsel's
knowledge, no options, warrants or other rights to
convert any obligation into, or exchange any securities
for, shares of capital stock or ownership interests in
the Company are outstanding.
(iv) To the best of such counsel's knowledge,
after due inquiry, neither the filing of the Registration
Statement or any amendment thereto nor the offer and sale
of the Securities to the Underwriters as contemplated by
this Agreement gives rise to any rights, nor do any
rights exist, for or relating to the registration under
the Act of any securities of either Offeror.
(v) The Registration Statement has become
effective under the Act, the Prospectus has been filed as
required by this Agreement, if necessary, and to the best
of such counsel's knowledge: (a) after telephonic
inquiry of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been
issued; and (b) no proceedings for that purpose are
pending or have been initiated or threatened by the
Commission. The Registration Statement (including the
information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to
Rule 430A, if applicable), the Prospectus and each
amendment or supplement thereto (except for the financial
statements and other statistical or financial data
included therein, as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations.
26
<PAGE>
<PAGE>
(vi) The descriptions in the Registration
Statement and Prospectus of contracts, instruments and
other documents filed as exhibits to the Registration
Statement, and the description of legal and governmental
proceedings, are accurate in all material respects, and
such counsel does not know of any Proceedings required to
be described in the Prospectus that are not described, or
of any contracts or documents of a character required to
be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that were not described and filed as required.
(vii) Neither the filing of the Registration
Statement or any amendment nor the execution and
performance of this Agreement, the Indenture, the Trust
Agreement or the Guarantee Agreement, nor the
consummation of the transactions contemplated herein or
therein, will contravene any of the provisions of, or
result in a default under (nor, to the best of such
counsel's knowledge, has any event occurred which with
notice or lapse of time, or both, would constitute a
breach or default under), any Obligations and Instruments
to which the Trust or the Company is a party or by which
their property is bound (except for such contravention or
default which would not have a Material Adverse Effect),
or violate any of the provisions of the Articles of
Incorporation, as amended, or by-laws of the Company, or
violate any Laws known to such counsel.
(viii) Neither the Trust, the Company nor any
Subsidiary is an "investment company" or a company
controlled by an "investment company" within the meaning
of the Investment Company Act.
(ix) The statements in the Prospectus under
the caption "Description of Trust Preferred Securities,"
"Description of Junior Subordinated Debentures,"
"Description of Guarantee" and "Relationship among the
Trust Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as such statements
constitute matters of law applicable to the Offerors or
summaries of documents, fairly present the information
required to be included therein in all material respects.
(x) All of the issued and outstanding Common
Securities of the Trust are owned by the Company, free
and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(xi) Each of the Indenture and the Trust
Agreement has been duly qualified under the Trust
Indenture Act.
(xii) The Subordinated Debentures are
subordinate and junior in right of payment to all Senior
Indebtedness of the Company.
27
<PAGE>
<PAGE>
(xiii) No Tax Event, Capital Treatment Event
or Investment Company Event (each as defined in the
Indenture) has occurred.
(xiv) The statements set forth in the
Prospectus under the caption "Certain United States
Federal Income Tax Consequences" constitute a fair and
accurate summary in all material respects of the matters
addressed therein, based upon current law and the
assumptions stated or referred to therein.
(xv) To the best of such counsel's knowledge
and information after due inquiry, the Trust is not
required to be authorized to do business in any other
jurisdiction, and the Trust is not a party to or
otherwise bound by any agreement other than those
described in the Prospectus.
(xvi) The Company satisfies the registrant
eligibility requirements to use Form S-2 to register
offerings and sales of its securities, and the Offerors
are legally permitted, pursuant to the terms of the Act,
to offer and sell the Securities pursuant to the
Registration Statement.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Offerors, representatives of the
independent public accountants of the Company and representatives
of the Underwriters and their counsel, at which the contents of
the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and
does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specifically set forth
above) and has not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality
upon the statements of officers and other representatives of the
Company), no facts have come to such counsel's attention that lead
such counsel to believe that either the Registration Statement or
any amendment (including any post-effective amendment) thereto at
the time such Registration Statement or amendment became
effective, and as of the Closing Date and any applicable Option
Closing Date, contained or contains an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, or that the Prospectus or any amendment or supplement
thereto as of their respective dates and as of the Closing Date
and any applicable Option Closing Date contained or contains an
untrue statement of a material fact or omitted or omits 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, except that such counsel need
express no views with respect to the financial statements,
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
28
<PAGE>
<PAGE>
(g) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of White & Case, counsel for the
Property Trustee under the Trust Agreement, the Indenture Trustee
under the Indenture and the Guarantee Trustee under the Guarantee
Agreement, to the effect that:
(i) Bankers 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 New York.
(ii) The Indenture 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 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 Agreement.
(iv) The 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
Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding
obligation of the Indenture Trustee and the Guarantee
Trustee, respectively, enforceable against the Indenture
Trustee and the Guarantee Trustee, respectively, in
accordance with their 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 or other similar laws affecting
the enforcement of creditors' rights generally, and by
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.
29
<PAGE>
<PAGE>
(vi) The Junior Subordinated Debentures
delivered on the Closing Date have been duly
authenticated by the Indenture Trustee in accordance with
the terms of the Indenture.
(h) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Richards, Layton and Finger,
P.A., special Delaware counsel for the Offerors, 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 Act, and all filings required as of
the date hereof under the Delaware Act with respect to
the creation and valid existence of the Trust as a
business trust have been made.
(ii) Under the Trust Agreement and the
Delaware Act, the Trust has the trust power and authority
to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Trust Agreement constitutes a valid
and binding obligation of the Company and each of the
Property Trustee and the Administrators, and is
enforceable against the Company and each of the Property
Trustee and the Administrators in accordance with its
terms.
(iv) Under the Trust Agreement and the
Delaware Act, the Trust has the trust power and authority
(i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and
to perform its obligations under, the Securities and the
Common Securities.
(v) Under the Trust Agreement and the Delaware
Act, the execution and delivery by the trust of this
Agreement, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
(vi) The Securities and the Common Securities
have been duly authorized by the Trust Agreement and are
duly and validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the
Trust. The respective holders of the Securities and the
Common Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal
liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware.
30
<PAGE>
<PAGE>
(vii) Under the Trust Agreement and the
Delaware Act, the issuance of the Securities and the
Common Securities is not subject to preemptive or similar
rights.
(viii) The issuance and sale by the Trust of
the Securities and the Common Securities, the purchase by
the Trust of the Subordinated Debentures, the execution,
delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions
contemplated by this Agreement and compliance by the
Trust with its obligations under this Agreement do not
violate (A) any of the provisions of the Certificate of
Trust or the Trust Agreement, or (B) any applicable
Delaware law or administrative regulation.
(i) You shall have received an opinion of Barack
Ferrazzano Kirschbaum Perlman & Nagelberg, counsel for the
Underwriters, dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory
to you.
(j) You shall have received, in connection with the
execution of this Agreement and on the Closing Date and each
Option Closing Date, a "cold comfort" letter from Ernst & Young
LLP and BDO Seidman, LLP, dated as of each such date, in form and
substance satisfactory to you, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(k) You shall have received from the Company a
certificate, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, addressed to the Underwriters
and dated the Closing Date or Option Closing Date, as applicable,
to the effect that:
(i) such officers do not know of any
Proceedings instituted, threatened or contemplated
against the Company of a character required to be
disclosed in the Prospectus that are not so disclosed,
and such officers do not know of any material contract
required to be filed as an exhibit to the Registration
Statement which is not so filed;
31
<PAGE>
<PAGE>
(ii) such officers have carefully examined the
Registration Statement and the Prospectus and all
amendments or supplements thereto and, in the opinion of
such officers, such Registration Statement or such
amendment as of its effective date and as of the Closing
Date, and the Prospectus or such supplement as of its
date and as of the Closing Date, did not contain an
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading
and, in the opinion of such officers, since the effective
date of the Registration Statement, no event has occurred
or information become known that should have been set
forth in an amendment to the Registration Statement or a
supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(iii) the representations and warranties of
the Company set forth in Section 6(a) of this Agreement
are true and correct as of the date of this Agreement and
as of the Closing Date or the Option Closing Date, as the
case may be (except for any such representations and
warranties made as of a specified date, which shall be
true and correct as of such date), and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration
Statement has been issued, and, to the best knowledge of
such officers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Company as to the facts required in the immediately
foregoing clauses (iii) and (iv) of this subparagraph to be set
forth in said certificate.
(l) You shall have received from the Trust a
certificate, signed by the Administrators, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
32
<PAGE>
<PAGE>
(i) such persons have carefully examined the
Registration Statement and the Prospectus and all
amendments or supplements thereto and, in the opinion of
such persons, such Registration Statement or such
amendment as of its effective date and as of the Closing
Date, and the Prospectus or such supplement as of its
date and as of the Closing Date, did not contain an
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading
and, in the opinion of such persons, since the effective
date of the Registration Statement, no event has occurred
or information become known that should have been set
forth in an amendment to the Registration Statement or a
supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(ii) the representations and warranties of the
Trust set forth in Section 6(a) of this Agreement are
true and correct as of the date of this Agreement and as
of the Closing Date or the Option Closing Date, as the
case may be (except for any such representations and
warranties made as of a specified date, which shall be
true and correct as of such date), and the Trust has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(iii) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration
Statement has been issued, and, to the best knowledge of
the respective signers, no proceedings for that purpose
have been instituted or are pending or contemplated under
the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Trust as to the facts required in the immediately foregoing
clauses (ii) and (iii) of this subparagraph to be set forth in
said certificate.
(m) You and your counsel shall have received on or
before the Closing Date or the Option Closing Date, as the case
may be, such further documents, opinions, certificates and
schedules or instruments relating to the business, corporate,
legal and financial affairs of the Offerors as you and they shall
have reasonably requested from the Offerors.
9. Termination and Defaults. This Agreement may be
terminated at any time prior to the Closing Date and any exercise of the
option to purchase Additional Securities may be cancelled at any time
prior to any Option Closing Date by the Underwriters by
33
<PAGE>
<PAGE>
written notice to the Offerors if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change
or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company, the Subsidiaries and
the Trust, taken as a whole, or the earnings, affairs, management, or
business of the Company, the Subsidiaries and the Trust, taken as a
whole, whether or not arising in the ordinary course of business, that
would, in your sole judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States that, in
your sole judgment, is material and adverse and would, in your sole
judgment, make it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus, (iii) the suspension
or material limitation of trading in securities on AMEX, (iv) the
enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other
governmental authority that in your opinion materially and adversely
affects, or will materially and adversely affect, the business or
operations of the Company, the Subsidiaries and the Trust, taken as a
whole, (v) the declaration of a banking moratorium by either federal or
Missouri state authorities, (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary
or fiscal affairs that in your opinion has a material adverse effect on
the financial markets in the United States or (vii) any change in
financial markets or in political, economic or financial conditions
which, in your sole opinion, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Securities on
the terms set forth in the Prospectus or materially adversely affects
the market for the Securities.
If on the Closing Date or on any Option Closing Date, as the case
may be, any of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it
has agreed to purchase hereunder on such date, and the aggregate number
of Firm Securities or Additional Securities, as the case may be, that
such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase does not exceed, in the aggregate, 10% of the total number
of Securities that all Underwriters are obligated to purchase on such
date, each non-defaulting Underwriter shall be obligated, in the
proportion which the number of Firm Securities set forth opposite its
name in Schedule I hereto bears to the total number of Firm Securities
or Additional Securities, as the case may be, that all the non-
defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Securities or
Additional Securities, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date. If, on the Closing Date or on the Option Closing Date, as
the case may be, any of the Underwriters shall fail or refuse to
purchase the Firm Securities or Additional Securities, as the case may
be, in an amount that exceeds, in the aggregate, 10% of the total number
of the Securities, and arrangements satisfactory to you and the Offerors
for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriters and the Offerors, except as
34
<PAGE>
<PAGE>
otherwise provided in this Section 9. In any such case that does not
result in termination of this Agreement, either you or the Offerors may
postpone the Closing Date or the Option Closing Date, as the case may
be, for not longer than seven days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Offerors, (ii) acceptance of the Securities and payment
therefor hereunder or (iii) termination of this Agreement.
Notwithstanding any termination of this Agreement, the Company shall be
liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(k).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Offerors, the
Underwriters, any indemnified person referred to herein and their
respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The terms "successors and
assigns" shall not include a purchaser of any of the Securities from any
of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the
Offerors will use your and their best efforts to cause the Registration
Statement to become effective, if it has not yet become effective, and
to prevent the issuance of any stop order suspending the effectiveness
of the Registration Statement and, if such stop order be issued, to
obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or
telegraphed and confirmed to you c/o EVEREN Securities, Inc., 77 West
Wacker Drive, Chicago, Illinois 60601-1694, Attention: Syndicate
Department, with a copy to Barack Ferrazzano Kirschbaum Perlman &
Nagelberg, 333 West Wacker Drive, Suite 2700, Chicago, Illinois 60606,
Attention: Edwin S. del Hierro; and if sent to the Company or the Trust
will be mailed, delivered or telegraphed and confirmed to the Company or
the Trust at the Company's corporate headquarters, 2122 Kratky Road, St.
Louis, Missouri 63114, with a copy to Thompson Coburn LLP, One
Mercantile Center, Suite 3400, St. Louis, Missouri 63101, Attention:
Thomas A. Litz.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
35
<PAGE>
<PAGE>
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
36
<PAGE>
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Trust and the several Underwriters,
including you.
Very truly yours,
ALLEGIANT BANCORP, INC.
By: /s/ Shaun R. Hayes
------------------------------------
Name: Shaun R. Hayes
Title: President and Chief
Executive Officer
ALLEGIANT CAPITAL TRUST I
By: /s/ Shaun R. Hayes
------------------------------------
Name: Shaun R. Hayes
Title: Administrator
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Wheat First Securities
Acting as representatives of the
several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By: /s/ Allen G. Laufenberg
----------------------------------------
Name: Allen G. Laufenberg
Title: Vice President
37
<PAGE>
<PAGE>
SCHEDULE I
-----------
Number of
Underwriter Trust Preferred Securities
- ----------- --------------------------
EVEREN Securities, Inc. 790,000
Wheat First Securities 500,000
Advest, Inc. 30,000
Fahnestock & Co. Inc. 30,000
Howe Barnes Investments Inc. 30,000
Ryan, Beck & Co., Inc. 30,000
Sandler O'Neill & Partners, L.P. 30,000
Stifel, Nicolaus & Company, Incorporated 30,000
Utendahl Capital Partners, L.P. 30,000
----------
Total 1,500,000
==========
38
<PAGE>
<PAGE>
SCHEDULE II<F*>
---------------
A. 851,625 shares of Common Stock issued in connection with a rights
offering completed on March 11, 1997.
B. 669,621 shares of Common Stock issued in connection with a rights
offering completed on December 3, 1997.
C. 898,689 shares of Common Stock issued in connection with the
acquisition of Reliance Financial, Inc.
[FN]
- --------
<F*> Each as adjusted to give effect to the five-for-four stock split
effected by the Company in January 1998 and the six-for-five stock
split effected by the Company in January 1999.
39
<PAGE>
=========================================================================
GUARANTEE AGREEMENT
Between
ALLEGIANT BANCORP, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Guarantee Trustee)
dated as of
August 2, 1999
=========================================================================
<PAGE>
<PAGE>
ALLEGIANT CAPITAL TRUST I
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
- --------------- -------------------
Section 310 (a)(1) 4.1(a)
(a)(2) 4.1(a)
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 2.8, 4.1(c)
Section 311 (a) Not Applicable
(b) Not Applicable
Section 312 (a) 2.2(a)
(b) 2.2(b)
(c) Not Applicable
Section 313 (a) 2.3
(a)(4) 2.3
(b) 2.3
(c) 2.3
(d) 2.3
Section 314 (a) 2.4
(b) 2.4
(c)(1) 2.5
(c)(2) 2.5
(c)(3) 2.5
(e) 1.1, 2.5, 3.2
Section 315 (a) 3.1(d)
(b) 2.7
(c) 3.1(c)
(d) 3.1(d)
(e) Not Applicable
Section 316 (a) 1.1, 2.6, 5.4
(a)(1)(A) 5.4
(a)(1)(B) 5.4
(a)(2) Not Applicable
(b) 5.3
(c) Not Applicable
Section 317 (a)(1) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
Section 318 (a) 2.1
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Guarantee Agreement.
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
Section 1.1. Definitions 1
ARTICLE II TRUST INDENTURE ACT 5
Section 2.1. Trust Indenture Act; Application 5
Section 2.2. List of Holders 5
Section 2.3. Annual Reports by the Guarantee Trustee 5
Section 2.4. Periodic Reports to the Guarantee Trustee 5
Section 2.5. Evidence of Compliance with Conditions Precedent 6
Section 2.6. Events of Default; Waiver 6
Section 2.7. Event of Default; Notice 6
Section 2.9. Conflicting Interests 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 6
Section 3.1. Powers and Duties of the Guarantee Trustee 6
Section 3.2. Certain Rights of Guarantee Trustee 8
Section 3.3. Indemnity 9
Section 3.4. Expenses 10
ARTICLE IV GUARANTEE TRUSTEE 10
Section 4.1. Guarantee Trustee; Eligibility 10
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee 10
ARTICLE V GUARANTEE 11
Section 5.1. Guarantee 11
Section 5.2. Waiver of Notice and Demand 11
Section 5.3. Obligations Not Affected 11
Section 5.4. Rights of Holders 12
Section 5.5. Guarantee of Payment 13
Section 5.6. Subrogation 13
Section 5.7. Independent Obligations 13
ARTICLE VI COVENANTS AND SUBORDINATION 13
Section 6.1. Subordination 13
Section 6.2. Pari Passu Guarantees 14
ARTICLE VII TERMINATION 14
Section 7.1. Termination 14
ARTICLE VIII MISCELLANEOUS 14
Section 8.1. Successors and Assigns 14
Section 8.2. Amendments 14
Section 8.3. Notices 14
Section 8.4. Benefit 16
Section 8.5. Interpretation 16
Section 8.6. Governing Law 16
Section 8.7. Counterparts 16
- i -
<PAGE>
<PAGE>
GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT, dated as of August 2, 1999 (this "Guarantee
Agreement"), is executed and delivered by ALLEGIANT BANCORP, INC., a
Missouri corporation (the "Guarantor"), having its principal office at
2122 Kratky Road, St. Louis, Missouri 63114 and BANKERS TRUST COMPANY, a
New York banking corporation, having its principal office at Four Albany
Street, Fourth Floor, New York, New York 10006, as trustee, for the
benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Allegiant Capital Trust I, a
Delaware statutory business trust (the "Issuer Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of August 2, 1999, among Allegiant Bancorp,
Inc., as Depositor, Bankers Trust Company, as Property Trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware Trustee (the
"Delaware Trustee") (collectively, the "Issuer Trustees"), the
Administrators named therein and the Holders from time to time of
preferred undivided beneficial ownership interests in the assets of
the Issuer Trust, the Issuer Trust is issuing up to $17,250,000 aggregate
Liquidation Amount (as defined herein) of its 9.875% Preferred Securities,
Liquidation Amount $10 per preferred security (the "Preferred
Securities"), (including up to 225,000 preferred securities that may be
issued to cover over-allotments), representing preferred undivided
beneficial ownership interests in the assets of the Issuer Trust and
having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer
Trust and the proceeds thereof, together with the proceeds from the
issuance of the Issuer Trust's Common Securities (as defined herein),
will be used to purchase the Junior Subordinated Debentures due August 2,
2029 (as defined in the Trust Agreement) (the "Junior Subordinated
Debentures") of the Guarantor which will be deposited with Bankers Trust
Company, as Property Trustee under the Trust Agreement, as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to
agree to the extent set forth herein, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase of the Preferred
Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, and intending to be legally
bound hereby, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the
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 terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
<PAGE>
<PAGE>
"Act" shall have the meaning specified in the Trust Agreement.
"Additional Amount" shall have the meaning specified in the Trust
Agreement.
"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.
"Cause" means any one of the following reasons:
(a) the Guarantee Trustee is incapable of acting as
Guarantee Trustee;
(b) the Guarantee Trustee is adjudged a bankrupt or
insolvent, or a receiver of the Guarantee Trustee or of its
property is appointed; or
(c) any public officer takes charge or control of the
Guarantee Trustee or of its property or affairs for the purposes
of rehabilitation, conservation or liquidation.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Delaware Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Distributions" means preferential cumulative cash distributions
accumulating from August 2, 1999 and payable quarterly in arrears March
31, June 30, September 30 and December 31 of each year, commencing
August 2, 1999 at the annual rate of 9.875% of the Liquidation Amount.
"Event of Default" means (a) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement, or (b) a default
by the Guarantor in any other obligation hereunder that remains
unremedied for 30 days.
"Extended Interest Payment Period" shall have the meaning
specified in the Indenture.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the Issuer
Trust: (a) any accumulated and unpaid Distributions required to be paid
on the Preferred Securities, to the extent the Issuer Trust shall have
funds available therefor at such time; (b) the Redemption Price, with
respect to the Preferred Securities called for redemption by the Issuer
Trust to the extent that the Issuer Trust shall have funds available
therefor at such time; and (c) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless the
Junior Subordinated Debentures are distributed to the Holders, the
lesser of (in either case, the "Liquidation Distribution") (i) the
aggregate of
- 2 -
<PAGE>
<PAGE>
the Liquidation Amount and all accumulated and unpaid Distributions to
the date of payment to the extent the Issuer Trust shall have funds
available to make such payment at such time and (ii) the amount of
assets of the Issuer Trust remaining available for distribution to
Holders in liquidation of the Issuer Trust.
"Guarantee Trustee" means Bankers 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.
"Guarantor" shall have the meaning specified in the preamble of
this Guarantee Agreement.
"Holder" means any holder, as registered on the books and records
of the Issuer Trust, of any Preferred Securities; provided, however,
that, in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor, the Guarantee
Trustee or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
August 2, 1999, between Allegiant Bancorp, Inc. and Bankers Trust
Company, as trustee, as may be modified, amended or supplemented from
time to time.
"Issuer Trust" shall have the meaning specified in the preamble of
this Guarantee Agreement.
"Issuer Trustees" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Junior Subordinated Debentures" shall have the meaning specified
in the first recital of this Guarantee Agreement.
"Like Amount" means (a) with respect to a redemption of Preferred
Securities, Preferred Securities having a Liquidation Amount equal to
the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, the
proceeds of which will be used to pay the Redemption Price of such
Preferred Securities, (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Preferred Securities in connection
with a termination, winding up or liquidation of the Issuer Trust,
Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of the Holder to whom
such Junior Subordinated Debentures are distributed, and (c) with
respect to any distribution of an Additional Amount to Holders of
Preferred Securities, Junior Subordinated Debentures having a principal
amount equal to the Liquidation Amount of the Preferred Securities in
respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $10 per Preferred
Security.
"Liquidation Distribution" shall have the meaning specified in the
definition of Guarantee Payments.
"Majority in Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, Preferred
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Preferred Securities issued by the Issuer
Trust.
- 3 -
<PAGE>
<PAGE>
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Chief Executive Officer,
President or a Vice President, and by the Chief Financial Officer,
Treasurer, an Associate 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 by each officer signing the Officers'
Certificate that such officer 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 such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Preferred Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Property Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Redemption Date" means, with respect to any Preferred Security to
be redeemed, the date fixed for such redemption by or pursuant to the
Trust Agreement; provided that each Junior Subordinated Debenture
Redemption Date (as such term is defined in the Indenture) and the
stated maturity of the Junior Subordinated Debentures shall be a
Redemption Date for a Like Amount of Preferred Securities.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust Office of
the Guarantee Trustee, including any managing director, director, vice
president, assistant vice president, associate or any other officer of
the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee 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.
"Senior Indebtedness" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
- 4 -
<PAGE>
<PAGE>
"Trust Agreement" shall have the meaning specified in the Recitals
to this Guarantee Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor
statute, in each case as amended from time to time.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of
and govern this Guarantee Agreement, the provision of the Trust
Indenture Act shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be
deemed to apply to this Guarantee Agreement as so modified or excluded,
as the case may be.
Section 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished
to the Guarantee Trustee:
(i) quarterly, not more than 15 days after March
15, June 15, September 15 and December 15 in each year, a
list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders as of
such date; and
(ii) 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 similar form
and content as of a date not more than 15 days prior to the
time such list is furnished.
(b) The Guarantee Trustee shall comply with the
requirements of Section 312(b) of the Trust Indenture Act.
Section 2.3. Annual Reports by the Guarantee Trustee.
Within 60 days of January 31 of each year commencing January 31,
2000, the Guarantee Trustee shall provide to the Holders such reports,
if any, as are required by Section 313 of the Trust Indenture Act in the
form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee also shall 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 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.
- 5 -
<PAGE>
<PAGE>
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee 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 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 Events of
Default 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 (i) a Responsible Officer
charged with the administration of this Guarantee Agreement shall
have received written notice of such Event of Default, or (ii) a
Responsible Officer of the Guarantee Trustee charged with
administration of the Trust Agreement shall have obtained actual
knowledge thereof.
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.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to
any Person except to a Holder exercising his or her rights
pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment
to act as Successor Guarantee Trustee hereunder. The right, title
and interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance
- 6 -
<PAGE>
<PAGE>
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
Agreement 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 be obligated to perform only such
duties as are specifically set forth in this Guarantee Agreement
(including pursuant to Section 2.1), and no implied covenants
shall be read into this Guarantee Agreement against the Guarantee
Trustee. If 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
bad faith or 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
(including pursuant to Section 2.1), 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
(including pursuant to Section 2.1); 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 Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the
- 7 -
<PAGE>
<PAGE>
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(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 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 conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document 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 conclusively 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 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, however, that nothing herein shall relieve the
Guarantee Trustee of its obligations upon the occurrence of
an Event of Default that has not been cured or waived
- 8 -
<PAGE>
<PAGE>
to exercise the rights and powers vested in the Guarantee
Trustee by this Guarantee, and to use the same degree of
care and skill in exercising such rights and powers as a
reasonably prudent person would use under the circumstances
in the conduct of his own affairs;
(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
negligence or willful misconduct on the part of any such
agent or attorney appointed with due care by it hereunder.
Nothing herein shall be construed as limiting or restricting
the right of the Guarantor to bring any action directly
against any agent or attorney appointed by the Guarantee
Trustee for any negligence or willful misconduct on the part
of such agent or attorney; and
(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;
(B) may refrain from enforcing such remedy
or right or taking such other action until such
instructions are received; and
(C) shall be fully 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 the Guarantee Trustee (which for
purposes of this Section 3.3 shall include its directors, officers,
employees and agents) for, and to hold the Guarantee Trustee harmless
against, any loss, liability or expense incurred without negligence,
willful misconduct 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
- 9 -
<PAGE>
<PAGE>
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee
Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee
Agreement.
Section 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee
Trustee for its reasonable expenses and costs (including reasonable
attorneys' or agents' fees) incurred in connection with the performance
of its duties hereunder.
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 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(b).
(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) No resignation or removal of the Guarantee Trustee
and no appointment of a Successor Guarantee Trustee pursuant to
this Article IV shall become effective until the acceptance of
appointment by the Successor Guarantee Trustee by written
instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to Section 4.2(a), a Guarantee Trustee may
resign at any time by giving written notice thereof to the
Holders. The Guarantee Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility
requirements such Person's expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the
lowest expenses and charges. If the instrument of acceptance by
the Successor Guarantee
- 10 -
<PAGE>
<PAGE>
Trustee shall not have been delivered to the Guarantee Trustee
within 60 days after the giving of such notice of resignation,
the Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for the appointment of a
Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for Cause at
any time by Act of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, delivered to the
Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to
appoint a successor, or if a Guarantee Trustee shall be removed
or become incapable of acting as Guarantee Trustee, or if any
vacancy shall occur in the office of any Guarantee Trustee for any
cause, the Holders of the Preferred Securities, by Act of the
Holders of record of not less than 25% in aggregate Liquidation
Amount of the Preferred Securities then outstanding delivered to
such Guarantee Trustee, shall promptly appoint a successor
Guarantee Trustee. If no Successor Guarantee Trustee shall have
been so appointed by the Holders of the Preferred Securities and
such appointment accepted by the Successor Guarantee Trustee, any
Holder, on behalf of himself and all others similarly situated,
may petition any court of competent jurisdiction for the
appointment of 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 as set forth in Section 6.1 hereof to the
Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the
Issuer Trust may have or assert, except the defense of payment. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer Trust to pay such amounts to the Holders. The
Guarantor shall give prompt written notice to the Guarantee Trustee in
the event it makes any direct payment hereunder.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement 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, the Issuer 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.
- 11 -
<PAGE>
<PAGE>
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 Issuer Trust of
any express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or observed
by the Issuer Trust;
(b) the extension of time for the payment by the Issuer
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 Junior
Subordinated Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Issuer 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 Issuer Trust or
any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) any failure or omission to receive any regulatory
approval or consent required in connection with the Preferred
Securities (or the Common Securities issued by the Issuer
Trust), including, without limitation, the failure to receive any
approval of the Board of Governors of the Federal Reserve System
required for the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(h) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor (other than payment of the underlying obligation), it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any
and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain 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:
(a) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders;
- 12 -
<PAGE>
<PAGE>
(b) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders;
(c) the Holders of a Majority in Liquidation Amount of
the Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(d) 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 Issuer Trust or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Issuer Trust) or upon the distribution
of Junior Subordinated Debentures to Holders as provided in the Trust
Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Issuer Trust in respect of any amounts paid to the
Holders by the Guarantor under this Guarantee Agreement; 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 Issuer Trust with respect to the
Preferred Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the terms
of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3
hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Indebtedness of the Guarantor to the extent and in
the manner set forth in the Indenture with respect to the Junior
Subordinated Debentures, and the provisions of Article XIII of the
Indenture will apply, mutatis mutandis, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
- 13 -
<PAGE>
<PAGE>
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement
shall rank pari passu with any similar guarantee agreements issued by
the Guarantor on behalf of the holders of preferred or capital
securities issued by the Issuer Trust and with any other security,
guarantee or other obligation that is expressly stated to rank pari
passu with the obligations of the Guarantor under this Guarantee
Agreement.
ARTICLE VII
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (a) full payment of the Redemption Price of all
Preferred Securities, (b) the distribution of Junior Subordinated
Debentures to the Holders in exchange for all of the Preferred
Securities or (c) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to
be effective or will be reinstated, as the case may be, if at any time
any Holder is required to repay any sums paid with respect to the
Preferred Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. 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 Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor
that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations
hereunder, and any purported assignment that is not in accordance with
these provisions shall be void.
Section 8.2. Amendments.
Except with respect to any changes that do not materially
adversely affect the rights of the Holders (in which case no consent of
the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of
the Holders shall apply to the giving of such approval.
- 14 -
<PAGE>
<PAGE>
Section 8.3. 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 (confirmed by delivery of
the original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantor
may give notice to the Holders:
Allegiant Bancorp, Inc.
2122 Kratky Road
St. Louis, Missouri 63114
Facsimile No.: (314) 692-8500
Attention: President
(b) if given to the Issuer Trust, in care of the
Guarantee Trustee, at the Issuer Trust's (and the Guarantee
Trustee's) address set forth below or such other address or
telecopy number or to the attention of such other Person as the
Guarantee Trustee on behalf of the Issuer Trust may give notice to
the Holders:
Allegiant Capital Trust I
c/o Allegiant Bancorp, Inc.
2122 Kratky Road
St. Louis, Missouri 63114
Facsimile No.: (314) 692-8500
Attention: President
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, New York 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group;
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, New York 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on
the books and records of the Issuer 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.
- 15 -
<PAGE>
<PAGE>
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Preferred Securities.
Section 8.5. 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;
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders;
(h) the words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation";
and
(i) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Guarantee Agreement as
a whole and not to any particular Article, Section or other
subdivision.
Section 8.6. 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.
Section 8.7. Counterparts.
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.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
- 16 -
<PAGE>
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
ALLEGIANT BANCORP, INC., as Guarantor
By: /s/ Shaun R. Hayes
-----------------------------------------
Shaun R. Hayes
President and Chief Executive Officer
BANKERS TRUST COMPANY, as Guarantee Trustee
and in its individual capacity
By: /s/ Ednora G. Linares
-----------------------------------------
Name: Ednora G. Linares
Title: Assistant Vice President
- 17 -
<PAGE>
=========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
Among
ALLEGIANT BANCORP, INC.
(as Depositor)
BANKERS TRUST COMPANY
(as Property Trustee)
and
BANKERS TRUST (DELAWARE)
(as Delaware Trustee)
SHAUN R. HAYES
(as Administrator)
THOMAS A. DAIBER
(as Administrator)
dated as of August 2, 1999
ALLEGIANT CAPITAL TRUST I
=========================================================================
<PAGE>
<PAGE>
ALLEGIANT CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
----------- -------
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8, 10.10(b)
Section 311 (a) 8.13, 10.10(b)
(b) 8.13, 10.10(b)
Section 312 (a) 10.10(b)
(b) 10.10(b), (f)
(c) 5.7
Section 313 (a) 8.15(a)
(a)(4) 10.10(c)
(b) 8.15(c), 10.10(c)
(c) 10.8, 10.10(c)
(d) 10.10(c)
Section 314 (a) 8.16, 10.10(d)
(b) Not Applicable
(c)(1) 8.17, 10.10(d), (e)
(c)(2) 8.17, 10.10(d), (e)
(c)(3) 8.17, 10.10(d), (e)
(e) 8.17, 10.10(e)
Section 315 (a) 8.1(d)
(b) 8.2
(c) 8.1(c)
(d) 8.1(d)
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.13
(c) 6.7
Section 317 (a)(1) Not Applicable
(a)(2) 8.14
(b) 5.10
Section 318 (a) 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS 1
Section 1.1 Definitions 1
ARTICLE II CONTINUATION OF THE ISSUER TRUST 11
Section 2.1 Name 11
Section 2.2. Office of the Delaware Trustee; Principal Place of Business 11
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses 12
Section 2.4. Issuance of the Preferred Securities 12
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior
Subordinated Debentures 12
Section 2.6. Declaration of Trust 13
Section 2.7. Authorization to Enter into Certain Transactions 13
Section 2.8. Assets of Trust 16
Section 2.9. Title to Trust Property 16
ARTICLE III PAYMENT ACCOUNT 16
Section 3.1. Payment Account 16
ARTICLE IV DISTRIBUTIONS, REDEMPTION 17
Section 4.1. Distributions 17
Section 4.2. Redemption 18
Section 4.3. Subordination of Common Securities 20
Section 4.4. Payment Procedures 21
Section 4.5. Tax Returns and Reports 21
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust 21
Section 4.7. Payments under Indenture or Pursuant to Direct Actions 22
Section 4.8. Liability of the Holder of Common Securities 22
ARTICLE V TRUST SECURITIES CERTIFICATES 22
Section 5.1. Initial Ownership 22
Section 5.2. The Trust Securities Certificates 22
Section 5.3. Execution and Delivery of Trust Securities Certificates 22
Section 5.4. Global Preferred Security 23
Section 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and
Exchanges; Preferred Securities Certificates 24
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates 25
Section 5.7. Persons Deemed Holders 25
Section 5.8. Access to List of Holders' Names and Addresses 26
Section 5.9. Maintenance of Office or Agency 26
<PAGE>
<PAGE>
Section 5.10. Appointment of Paying Agent 26
Section 5.11. Ownership of Common Securities by Depositor 26
Section 5.12. Notices to Clearing Agency 27
Section 5.13. Rights of Holders 27
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING 29
Section 6.1. Limitations on Holder's Voting Rights 29
Section 6.2. Notice of Meetings 29
Section 6.3. Meetings of Holders 30
Section 6.4. Voting Rights 30
Section 6.5. Proxies, etc 30
Section 6.6. Holder Action by Written Consent 30
Section 6.7. Record Date for Voting and Other Purposes 30
Section 6.8. Acts of Holders 31
Section 6.9. Inspection of Records 32
ARTICLE VII REPRESENTATIONS AND WARRANTIES 32
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee 32
Section 7.2. Representations and Warranties of the Depositor 33
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS 33
Section 8.1. Certain Duties and Responsibilities 33
Section 8.2. Certain Notices 35
Section 8.3. Certain Rights of Property Trustee 36
Section 8.4. Not Responsible for Recitals or Issuance of Securities 37
Section 8.5. May Hold Securities 37
Section 8.6. Compensation; Indemnity; Fees 37
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and
Administrators 38
Section 8.8. Conflicting Interests 39
Section 8.9. Co-Trustees and Separate Trustee 39
Section 8.10. Resignation and Removal; Appointment of Successor 40
Section 8.11. Acceptance of Appointment by Successor 41
Section 8.12. Merger, Conversion, Consolidation or Succession to Business 41
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust 42
Section 8.14. Trustee May File Proofs of Claim 42
Section 8.15. Reports by Property Trustee 42
Section 8.16. Reports to the Property Trustee 43
Section 8.17. Evidence of Compliance with Conditions Precedent 43
Section 8.18. Number of Issuer Trustees 43
Section 8.19. Delegation of Power 43
Section 8.20. Appointment of Administrators 44
<PAGE>
<PAGE>
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER 44
Section 9.1. Dissolution Upon Expiration Date 44
Section 9.2. Early Dissolution 44
Section 9.3. Termination 45
Section 9.4. Liquidation 45
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer
Trust 46
Section 9.6. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust 46
ARTICLE X MISCELLANEOUS PROVISIONS 47
Section 10.1. Limitation of Rights of Holders 47
Section 10.2. Amendment 47
Section 10.3. Separability 48
Section 10.4. Governing Law 49
Section 10.5. Payments Due on Non-Business Day 49
Section 10.6. Successors and Assigns 49
Section 10.7. Headings 49
Section 10.8. Reports, Notices and Demands 49
Section 10.9. Agreement Not to Petition 50
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act 50
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture 51
Section 10.12. Counterparts 51
<CAPTION>
EXHIBITS
<S>
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
</TABLE>
<PAGE>
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT
------------------------------------
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 2,
1999 (this "Trust Agreement"), is among (a) ALLEGIANT BANCORP, INC., a
Missouri corporation (including any successors or assigns, the
"Depositor"), (b) BANKERS TRUST COMPANY, a New York banking corporation,
as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (c) BANKERS TRUST (DELAWARE), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the Property
Trustee and the Delaware Trustee are referred to collectively herein as
the "Issuer Trustees"); (d) SHAUN R. HAYES, an individual, and THOMAS
A. DAIBER, an individual, each of whose address is c/o the Depositor (each
an "Administrator" and, collectively, the "Administrators" and together
with the Issuer Trustees, the "Trustees"); and (e) the several Holders,
as hereinafter defined.
RECITALS
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust pursuant to the Delaware
Business Trust Act by the entering into a certain Declaration of Trust,
dated as of June 29, 1999 (the "Original Trust Agreement"), and by the
execution and filing by the Delaware Trustee with the Secretary of State
of the State of Delaware of the Certificate of Trust, filed on June
30, 1999 (the "Certificate of Trust"), a copy of which is attached
hereto as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend
and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (a) the issuance of the
Common Securities by the Issuer Trust to the Depositor, (b) the issuance
and sale of the Preferred Securities by the Issuer Trust pursuant to the
Underwriting Agreement, (c) the acquisition by the Issuer Trust from the
Depositor of all of the right, title and interest in the Junior
Subordinated Debentures and (d) the appointment of the Property Trustee
and the Administrators.
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each party,
for the benefit of the other parties and for the benefit of the Holders,
hereby amends and restates the Original Trust Agreement in its entirety
and agrees, intending to be legally bound, as follows:
ARTICLE I
----------
DEFINITIONS
-----------
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 I 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;
<PAGE>
<PAGE>
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of computation;
(e) 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;
(f) 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; and
(g) all references to the date the Preferred Securities were
originally issued shall refer to the date the 9.875% Preferred Securities
were originally issued.
"25% Capital Limitation" means the limitation imposed by the
Federal Reserve that the proceeds of certain qualifying securities
similar to the Trust Securities will qualify as Tier 1 capital of the
Depositor up to an amount not to exceed, when taken together with all
cumulative preferred stock of the Depositor, if any, 25% of the
Depositor's Tier 1 capital, and any subsequent or successor limitation
adopted by the Federal Reserve.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or for a given period, the amount of
Additional Interest paid by the Depositor on a Like Amount of Junior
Subordinated Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of
the Indenture.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust heretofore formed and continued hereunder and not in such
Person's individual capacity, or any successor Administrator appointed
as herein provided; with the initial Administrators being Shaun R. Hayes
and Thomas A. Daiber.
"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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred
Security, in each case to the extent applicable to such transaction and
as in effect from time to time.
2
<PAGE>
<PAGE>
"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 federal or state bankruptcy,
insolvency, reorganization or other similar 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 60 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 federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or 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 Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor
or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor
performing similar functions) or, for purposes of this Trust Agreement,
a committee designated by the board of directors of the Depositor (or
any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to
act on behalf of the Board of Directors has been delegated, and to be in
full force and effect on the date of such certification, and delivered
to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in the State of Missouri or in
the City of New York are authorized or required by law or executive
order to remain closed or (c) a day on which the Property Trustee's
Corporate Trust Office or the Delaware Trustee's Corporate Trust Office
or the Corporate Trust Office of the Debenture Trustee is closed for
business.
"Capital Treatment Event" means the receipt by the Depositor and
the Issuer Trust of the Opinion of Counsel, rendered by counsel
experienced in such matters, that, as a result of the occurrence of any
amendment to, or change (including any announced prospective change) in,
the laws (or any rules or 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 pronouncement, action or decision is
announced on or after the date of the issuance of the Preferred
Securities of the
3
<PAGE>
<PAGE>
Issuer Trust, there is more than an insubstantial risk that the
Depositor will not be entitled to treat an amount equal to the
Liquidation Amount of such Preferred Securities as "Tier 1 Capital" (or
the then equivalent thereof), except as otherwise restricted under the
25% Capital Limitation, for purposes of the risk-based capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to
the Depositor; provided, that the Depositor or the Issuer Trust shall have
requested and received such an Opinion of Counsel with regard to such
matters within a reasonable period of time after the Depositor or the
Issuer Trust, as appropriate, shall have become aware of the possible
occurrence of any such event.
"Cede" means Cede & Co.
"Certificate Depositary Agreement" means the agreement among the
Issuer Trust, the Depositor and the Depositary, as the initial Clearing
Agency, dated as of the Closing Date, substantially in the form attached
hereto as Exhibit B, as the same may be amended and supplemented from
---------
time to time.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary
shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the Time of Delivery for the Firm Securities,
which date is also the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended or any
successor statute, in each case as amended from time to time.
"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 Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached
hereto as Exhibit C.
---------
"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $10 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Corporate Trust Office" means (a) with respect to the Property
Trustee or the Debenture Trustee, the principal office of the Property
Trustee located in the City of New York, New York, which at the time of
the execution of this Trust Agreement is located at Four Albany Street,
New York, New York 10006; Attention: Corporate Trust and Agency Services,
and (b) with respect to the Delaware Trustee, the principal office of
the Delaware Trustee located at E.A. Delle Donne Corporate Center,
Montgomery Building, 1011 Centre Road, Suite 200, Wilmington, Delaware,
19805-1266.
4
<PAGE>
<PAGE>
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date
fixed for redemption of such Junior Subordinated Debentures under the
Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York
banking corporation and any successor, as trustee under the Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from
-------
time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Issuer Trust continued hereunder and
not in its individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Depositary" means The Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"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;
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days;
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable;
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in, this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause (b)
or (c) above) and continuation of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Issuer Trustees and the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount
5
<PAGE>
<PAGE>
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 any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a
successor Property Trustee has not been appointed within a period of 60
days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, in each case as amended from
time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Firm Securities" means an aggregate Liquidation Amount of
$15,000,000 of the Issuer Trust's 9.875% cumulative preferred securities.
"Global Preferred Securities Certificate" means a Preferred
Securities Certificate evidencing ownership of Global Preferred
Securities.
"Global Preferred Security" means a Preferred Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers Trust Company, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities,
as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of
August 2, 1999, between the Depositor and the Debenture Trustee (as
amended or supplemented from time to time) relating to the issuance of
the Junior Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940,
as amended or any successor statute, in each case as amended from time
to time.
"Investment Company Event" means the receipt by the Depositor and
the Issuer Trust of an Opinion of Counsel, rendered by counsel
experienced in such matters, to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Issuer
Trust is 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 the issuance of the Preferred
Securities;
6
<PAGE>
<PAGE>
provided, however, that the Depositor or the Issuer Trust shall have
requested and received an Opinion of Counsel with regard to such
matters within a reasonable period of time after the Depositor or the
Issuer Trust, as appropriate, shall have become aware of the possible
occurrence of any such event.
"Issuer Trust" means Allegiant Capital Trust I.
"Issuer Trustees" means, collectively, the Property Trustee and
the Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's 9.875% junior subordinated deferrable interest
debentures, due August 2, 2029 which date may be shortened once at
any time by the Depositor to any date not earlier than August 2, 2004
issued pursuant to the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated
to the Common Securities and to the Preferred Securities based upon the
relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Issuer
Trust, Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom
such Junior Subordinated Debentures are distributed; provided, in the
case of clause (b) that each Junior Subordinated Debenture so
distributed shall carry accrued and unpaid interest in an amount equal to
the amount of accrued and unpaid interest then due on such Junior
Subordinated Debentures.
"Liquidation Amount" means the stated amount of $10 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures or the Liquidation Distributions are to be distributed to
Holders of Trust Securities in connection with a dissolution and
liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except
as provided by the Trust Indenture Act, Preferred Securities or Common
Securities, as the case may be, representing more than 50% of the
aggregate Liquidation Amount of all then Outstanding Preferred
Securities or Common Securities, as the case may be.
"Officers' Certificate" means, a certificate signed by the
Chairman of the Board, Chief Executive Officer, President or any Vice
President and by the Chief Financial Officer, the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Secretary, or an
Assistant Secretary, of the Depositor, and delivered to the appropriate
Issuer Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
7
<PAGE>
<PAGE>
(a) a statement by each officer signing the Officers'
Certificate that such officer 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 such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of independent
outside counsel to the Depositor.
"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of up to
$2,250,000 of the Issuer Trust's 9.875% cumulative preferred securities,
issuable at any time and from time to time to the Underwriters at their
option, exercisable within 30 days after the date of the Prospectus,
solely to cover over-allotments, if any.
"Option Preferred Securities Certificate" means the certificate
evidencing ownership of Preferred Securities issued if the Underwriters
exercise their option described in Section 2.4, which certificate shall
be substantially in the form attached hereto as Exhibit D.
---------
"Original Trust Agreement" has the meaning specified in the
preamble to this Trust Agreement.
"Outstanding," 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 Preferred
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 Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, and 5.6; 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 Issuer Trustee, any
Administrator, or any Affiliate of the Depositor or any Issuer Trustee
shall be disregarded and deemed not to be Outstanding, except that
(i) in determining whether any Issuer Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Preferred Securities that such Issuer Trustee
or such Administrator, as the case may be, knows to be so owned shall
be so disregarded and (ii) the foregoing shall not apply at any time
when all of the outstanding Preferred Securities are
8
<PAGE>
<PAGE>
owned by the Depositor, one or more of the Issuer Trustees, one or more
of the Administrators 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
Administrators 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 Global
Preferred Securities 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 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee in its trust
department for the benefit of the Holders in which all amounts paid in
respect of the Junior Subordinated Debentures will be held and from
which the Property Trustee, through the Paying Agent, shall make
payments to the Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached
hereto as Exhibit D.
---------
"Preferred Security" means a Firm Security or an Option Security,
each constituting a preferred undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $10 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as
provided herein.
"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 Issuer Trust 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.
"Prospectus" means the final prospectus covering the Preferred
Securities, Junior Subordinated Debentures and the Guarantee Agreement.
"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 Junior Subordinated Debenture
Redemption Date and the stated maturity of the Junior Subordinated
Debentures shall be a Redemption Date for a Like Amount of Trust
Securities, including, but not limited to, any date of redemption pursuant
to the occurrence of any Special Event.
"Redemption Price" means with respect to a redemption of any Trust
Security, the Liquidation Amount of such Trust Security, together with
accumulated but unpaid Distributions to but excluding the
9
<PAGE>
<PAGE>
date fixed for redemption, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Junior Subordinated Debentures.
"Relevant Trustee" has 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, director, vice president, assistant
vice president, associate 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 the Indenture, 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.
"Rights Plan" means any plan of the Depositor providing for the
issuance by the Depositor to all holders of its common stock, entitling
the holders thereof to subscribe for or purchase shares of any class
or series of capital stock of the Depositor which rights (a) are deemed
to be transferred with such shares of such common stock, (b) are not
exercisable, and (c) are also issued in respect of future issuances
of such common stock, in each case until the occurrence of a special
event or events.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute thereto, in each case as amended from time to
time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event, or
Investment Company Event.
"Successor Securities Certificate" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate
issued after, and evidencing all or a portion of the same beneficial
interest in the Issuer Trust as that evidenced by, such particular
Preferred Securities Certificate; and, for the purposes of this
definition, any Preferred Securities Certificate executed and delivered
under Section 5.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Securities Certificate.
"Successor Security" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Depositor and the Issuer
Trust of an Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting
or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or
after the date of issuance of the Preferred Securities, there is more
than an insubstantial risk that (a) the Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to
United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, (b) interest payable by
the Depositor on the Junior Subordinated Debentures is not, or within 90
days of the delivery of such Opinion of Counsel will not be, deductible
by the Depositor, in whole or in part, for United States federal income
tax purposes, or (c) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges;
provided, however, that the Depositor or the Issuer Trust shall have
received an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Depositor or the Issuer Trust, as
appropriate, shall have become aware of the possible occurrence of any
such event.
10
<PAGE>
<PAGE>
"Time of Delivery" means 9:00 a.m. Eastern Time, either (a) with
respect to the Firm Securities or the Common Securities, on the third
Business Day (unless postponed in accordance with the provisions of
Section 4 of the Underwriting Agreement) following the date of
execution of the Underwriting Agreement, or such other time not later
than ten Business Days after such date as shall be agreed upon by the
Underwriters, the Issuer Trust and the Depositor, or (b) with respect to
the Option Securities, the applicable Option Closing Date.
"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 (a) all Exhibits hereto, and
(b) for all purposes of this Amended and Restated 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
Amended and Restated Trust Agreement and any modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor
statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, and
(c) 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 Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
July 27, 1999, among the Issuer Trust, the Depositor and the
Underwriters, as the same may be amended from time to time.
ARTICLE II
----------
CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name. The Issuer Trust continued hereby shall be
----
known as "Allegiant Capital Trust I," as such name may be modified from
time to time by the Administrators following written notice to the
Holders of Trust Securities and the other Issuer Trustees, in which name
the Administrators and the Issuer Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Issuer 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 Bankers Trust (Delaware), E.A. Delle Donne Corporate Center,
Montgomery Building, 1011 Centre Road, Suite 200, Wilmington, Delaware,
19805-1266, Attention: Corporate Trust Administration, or such other
address in the State of Delaware as the Delaware Trustee may designate
by written notice to the Holders and the Depositor. The principal
executive office of the Issuer Trust is in care of Allegiant Bancorp,
Inc., 2122 Kratky Road, St. Louis, Missouri 63114, Attention: Corporate
Secretary.
11
<PAGE>
<PAGE>
Section 2.3. Initial Contribution of Trust Property;
----------------------------------------
Organizational Expenses. The Issuer Trustees acknowledge receipt in
- -----------------------
trust from the Depositor in connection with this Trust Agreement of the
sum of $10, which constitutes the initial Trust Property. The Depositor
shall pay all organizational expenses of the Issuer Trust as they arise
or shall, upon request of any Issuer Trustee, promptly reimburse such
Issuer Trustee for any such reasonable expenses paid by such Issuer
Trustee. 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
------------------------------------
July, 1999, the Depositor, both on its own behalf and on behalf
of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Issuer Trust, shall manually execute in accordance with
Section 5.3 and the Property Trustee shall authenticate in accordance
with Section 5.3 and deliver to the Underwriters, Firm Securities
Certificates, registered in the names requested by the Underwriters, in
an aggregate amount of 1,500,000 Firm Securities having an aggregate
Liquidation Amount of $15,000,000, against receipt of the aggregate
purchase price of such Preferred Securities of $15,000,000, by the
Property Trustee.
At the option of the Underwriters, at any time and from time to
time within 30 days of the date of the Prospectus, and solely for the
purpose of covering an over-allotment, if any, an Administrator, on
behalf of the Issuer Trust, shall manually execute in accordance with
Section 5.3 and the Property Trustee shall authenticate in accordance
with Section 5.3 and deliver to the Underwriters, Option Preferred
Securities Certificates, registered in the names requested by the
Underwriters, representing up to 225,000 Option Securities in the
aggregate having an aggregate Liquidation Amount of up to $2,250,000
against receipt of the aggregate purchase price of such Option
Securities of up to $2,250,000 by the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription
------------------------------------------------
and Purchase of Junior Subordinated Debentures. Contemporaneously with
- ----------------------------------------------
the execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Issuer Trust, shall execute in accordance with Section 5.3
and the Property Trustee shall authenticate in accordance with
Section 5.3 and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an aggregate
amount of 58,442 Common Securities having an aggregate Liquidation
Amount of $584,420 against receipt by the Property Trustee of the
aggregate purchase price of such Common Securities of $584,420 by the
Property Trustee. In the event of any exercise from time to time of an
over-allotment option requiring issuance of additional Option Preferred
Securities Certificates, as described in Section 2.4 above, a proportionate
number of additional Common Securities Certificates, with corresponding
aggregate Liquidation Amount, shall be delivered to the Depositor
against receipt by the Property Trustee of the aggregate purchase price
therefor. Contemporaneously with the executions, and deliveries of
Common Securities Certificates and any Preferred Securities
Certificates, an Administrator, on behalf of the Issuer Trust, shall
subscribe for and purchase from the Depositor, corresponding amounts of
Junior Subordinated Debentures, registered in the name of the Issuer
Trust and having an aggregate principal amount equal to $15,584,420,
plus, in the event of any exercise from time to time of the over-
allotment option (a) a corresponding additional number of Junior
Subordinated Debentures not exceeding an aggregate principal amount of
$2,250,000 and (b) a corresponding number of Junior Subordinated
Debentures not exceeding an aggregate principal amount equal to the
aggregate Liquidation Amount of Common Securities issued pursuant to
such exercise from time to time of an over-allotment option; and, in
satisfaction of the purchase price for such Junior Subordinated
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of $15,584,420, plus any corresponding
over-allotment option amount(s) (being the
12
<PAGE>
<PAGE>
sum of the amounts delivered to the Property Trustee pursuant to (a) the
second sentence of the first paragraph and the second paragraph of
Section 2.4 and (b) the first and second sentences of this Section 2.5)
and receive the Junior Subordinated Debentures on behalf of the Issuer
Trust.
Section 2.6. Declaration of Trust. The exclusive purposes
--------------------
and functions of the Issuer Trust are to (a) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Junior
Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient, or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have
all the rights, powers and duties to the extent set forth herein, and
the Issuer 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 Issuer Trust and the Holders. The Depositor hereby appoints the
Administrators (as agents of the Issuer Trust), with such Administrators
having all rights, powers, and duties set forth herein with respect to
accomplishing the purposes of the Issuer Trust, and the Administrators
hereby accept such appointment; provided, however, that it is the intent
of the parties hereto that such Administrators shall not be trustees or
fiduciaries with respect to the Issuer Trust and this Trust Agreement
shall be construed in a manner consistent with such intent. The
Property Trustee shall have the right, power and authority to perform
those duties assigned to the Administrators. 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 Administrators set forth herein. The Delaware Trustee shall be one
of the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by a
Delaware trustee under the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of
this Section 2.7 and in accordance with the following provisions (i) and
(ii), the Issuer Trustees and the Administrators shall act as follows:
(i) Each Administrator shall have the power and authority
and is hereby authorized and directed to act on behalf of the
Issuer Trust with respect to the following:
(A) the compliance with the Underwriting Agreement
regarding the issuance and sale of the Trust Securities;
(B) the compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust
Indenture Act;
(C) execute the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Preferred Securities upon the
American Stock Exchange or such other securities exchange or
exchanges or upon the Nasdaq National Market as shall be
determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act, if required,
and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
13
<PAGE>
<PAGE>
(E) the application for a taxpayer identification
number for the Issuer Trust;
(F) the preparation of a registration statement and
a prospectus in relation to the Preferred Securities,
including any amendments thereto and the taking of any
action necessary or desirable to sell the Preferred
Securities in a transaction or series of transactions
subject to the registration requirements of the Securities
Act;
(G) cause the Issuer Trust to enter into, and
execute, deliver and perform on behalf of the Issuer Trust
all agreements, instruments, certificates or other documents
as such Administrator deems necessary or incidental to the
purposes and functions of the Issuer Trust; and
(H) any action incidental to the foregoing as the
Administrators may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and
authority, and is hereby authorized and directed, to act on behalf
of the Issuer Trust with respect to the following matters:
(A) establish and maintain the Payment Account;
(B) receive, take title to and exercise all of the
rights, powers and privileges of the holder of the Junior
Subordinated Debentures;
(C) receive and collect interest, principal and any
other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) distribute amounts owed to the Holders in
respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar
to the extent appointed as such hereunder;
(F) send notices of default and other notices and
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with
this Trust Agreement;
(G) distribute the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
wind up the affairs of and liquidate the Issuer Trust and
prepare, execute and file 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) or (d) of the definition of such term if
such Event of Default is by or with respect to the Property
Trustee), comply with the provisions of this Trust Agreement
and take any action to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property
for the benefit of the Holders (without consideration of the
effect of any such action on
14
<PAGE>
<PAGE>
any particular Holder); provided, however, that nothing in
this Section 2.7(a)(ii) shall require the Property Trustee
to take any action that is not otherwise required in this
Trust Agreement; and
(J) take any action incidental or convenient 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; provided, however, that
nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise
required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees or Administrators acting on behalf
of the Issuer Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby.
In particular, neither the Issuer Trustees nor the Administrators (in
each case acting on behalf of the Issuer Trust) shall (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-
off or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected to cause the
Issuer Trust to fail or cease to qualify as 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 Property Trustee 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 Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the power and authority to assist
the Issuer Trust with respect to, or effect on behalf of the Issuer
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 Issuer Trust with
the Commission, and the execution and delivery on behalf of the
Issuer Trust, of a registration statement and a prospectus in
relation to the Preferred Securities, including any amendments
thereto, and the taking of any action necessary or desirable to
sell the Preferred Securities in a transaction or a series of
transactions subject to the registration requirements of the
Securities Act;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the
Issuer Trust, and the advice to the Issuer Trustees of actions
they must take on behalf of the Issuer Trust, and the preparation
for execution and filing of any documents to be executed and filed
by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states in connection with the offer
and sale of the Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of
a registration statement on Form 8-A relating to the
15
<PAGE>
<PAGE>
registration of the Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, as amended, including any amendments
thereto;
(v) compliance with the listing requirements of the
Preferred Securities upon the American Stock Exchange or such
other securities exchange or exchanges, or upon the Nasdaq
National Market, as shall be determined by the Depositor, the
registration of the Preferred Securities under the Exchange Act,
if required, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing; 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
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust
so that the Issuer Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act, and
will be classified as a grantor trust (and not as an association taxable
as a corporation) for United States federal income tax purposes and so
that the Junior Subordinated Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Property Trustee, the Administrators and the Holders of
Common Securities are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust Agreement,
that the Property Trustee, the Administrators and Holders of Common
Securities determine in their 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 Outstanding
Preferred Securities. In no event shall the Administrators or the
Issuer Trustees be liable to the Issuer Trust or the Holders for any
failure to comply with this section that results from a change in law or
regulations or in the interpretation thereof.
Section 2.8. Assets of Trust. The assets of the Issuer Trust
---------------
shall consist solely 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 Issuer Trust and
shall be held and administered by the Property Trustee (in its capacity
as such) for the benefit of the Issuer Trust and the Holders 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 its agents
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 Holders and for
distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
16
<PAGE>
<PAGE>
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and
any other payments or proceeds with respect to, the Junior Subordinated
Debentures. Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE IV
----------
DISTRIBUTIONS; REDEMPTION
-------------------------
Section 4.1. Distributions.
-------------
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including
Distributions of Additional Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of interest
(including payments of Additional Interest are made on the Junior
Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are funds of
the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from August 2, 1999, and, except
in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Junior Subordinated
Debentures pursuant to the Indenture, shall be payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on September 30, 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 (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 Distributions shall be made on the
immediately preceding Business Day, in either case with the same
force and effect as if made on the date on which such payment was
originally payable (each date on which distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 9.875% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full
Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the Indenture
to defer the payment of interest on the Junior Subordinated
Debentures at any time and from time to time for a period not
exceeding 20 consecutive quarterly periods (an "Extension
Period"), provided that no Extension Period may extend beyond
August 2, 2029 or end on a date other than a Distribution Date.
As a consequence of any such deferral, quarterly Distributions on
the Trust Securities by the Issuer Trust will also be deferred
(and the amount of Distributions to which Holders of the Trust
Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of 9.875% per annum, compounded
quarterly) from the relevant payment date for such Distributions,
computed on the basis of a 360-day year of twelve 30-day months and
the actual
17
<PAGE>
<PAGE>
days elapsed in a partial month in such period. Additional
Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four. The term
"Distributions" as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this
Section 4.1(a)(iii). During an Extension Period, the Depositor
shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Depositor's capital stock, or (ii) make any
payment of principal of or interest or premium, if any, on, or
repay, repurchase or redeem any debt securities of the Depositor
that rank pari passu with, or are junior in interest to, the
Securities, including the Depositor's obligations associated with
the outstanding Preferred Securities or (iii) redeem, purchase
or acquire less than all of the Junior Subordinated Debentures
or any of the Preferred Securities (other than (A) repurchases,
redemptions or other acquisitions of shares of capital stock of
the Depositor in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock
purchase plan, or in connection with the issuance of capital
stock of the Depositor (or securities convertible into or
exercisable for such capital stock) as consideration in an
acquisition transaction entered into at least 30 days prior to
the applicable Extension Period, (B) as a result of a
reclassification, an exchange or conversion of any class or
series of the Depositor's capital stock (or any capital stock of a
subsidiary more than 50% of the outstanding voting stock of which
is owned, directly or indirectly, by the Depositor and/or one or
more of its subsidiaries) for any class or series of the Depositor's
capital stock, (C) the purchase of fractional interests in shares
of the Depositor's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being
converted or exchanged, (D) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights,
stock or other property under any rights plan, or the redemption
or repurchase of rights pursuant thereto, or (E) any dividend
in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that
on which the dividend is being paid or ranks pari passu with or
junior to such stock).
(iv) 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 Issuer Trust
has funds then 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 at the close of
business on the relevant record date, which shall be at the close of
business on the 15th day of March, June, September or December (whether
or not a Business Day).
Section 4.2. Redemption.
----------
(a) On each Debenture Redemption Date and on the stated maturity
of the Junior Subordinated Debentures, the Issuer Trust will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption shall state:
18
<PAGE>
<PAGE>
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price
cannot be calculated prior to the time the notice is required to
be sent, the estimate of the Redemption Price provided pursuant to
the Indenture together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption
Price on the date, or as soon as practicable thereafter, that
notice of such actual Redemption Price is received pursuant to the
Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(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;
(v) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accumulate
on and after said date, except as provided in Section 4.2(d)
below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP"
numbers, and the Property Trustee shall indicate the "CUSIP" numbers of
the Trust Securities in notices of redemption and related materials as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of
redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds from
the contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that
the Issuer Trust has funds then 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), the Property
Trustee will, with respect to Preferred Securities held in global form,
irrevocably deposit with the Clearing Agency for such Preferred
Securities, to the extent available therefor, 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 Owners of the Preferred Securities. With respect to Preferred
Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent, to the extent available therefor, 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 of
the Preferred Securities upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then,
upon the date of such deposit, all rights of Holders holding Trust
Securities
19
<PAGE>
<PAGE>
so called for redemption will cease, except the right of such Holders to
receive the Redemption Price and any Distributions payable in respect of
the Trust Securities on or prior to the Redemption Date, but without
interest, and such Trust Securities will cease to be Outstanding. In
the event that any date on which any applicable Redemption Price is
payable is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as
if made on such date. 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 Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such
Trust Securities will continue to accumulate, as set forth in
Section 4.1, from the Redemption Date originally established by the
Issuer Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Preferred Securities not previously called for
redemption in such a manner as the Property Trustee shall deem fair and
appropriate. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption
and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
(f) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be the date 15 days prior to the relevant Redemption
Date.
Section 4.3. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable, shall
be made, pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of such 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 any Additional Amounts, if applicable) on, or Redemption
Price of, or Liquidation Distribution in respect of, any Common
Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or, in the case of payment of the
Redemption Price, the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, or in the
case of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution 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 any Additional Amounts, if
applicable) on, or the Redemption Price of, or Liquidation
20
<PAGE>
<PAGE>
Distribution in respect of Preferred Securities then due and payable.
The existence of an Event of Default does not entitle the Holders of
Preferred Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the Common
Securities shall have no right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events
of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Events of Default under
this Trust Agreement with respect to the Preferred Securities have been
so cured, waived, or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities and not
on behalf of 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 any 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 will credit the relevant accounts on the
applicable Distribution Dates. Payments of Distributions to Holders of
$1,000,000 or more in aggregate Liquidation Amount of Preferred
Securities may be made by wire transfer of immediately available funds
upon written request of such Holder of Preferred Securities to the
Securities Registrar not later than 15 calendar days prior to the date
on which the Distribution is payable. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
Section 4.5. Tax Returns and Reports.
-----------------------
(a) The Administrators shall prepare and file (or cause to be
prepared and filed), at the Depositor's expense, all United States
federal, state, and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this
regard, the Administrators shall (i) prepare and file (or cause to be
prepared and filed) all Internal Revenue Service forms required to be
filed in respect of the Issuer Trust in each taxable year of the Issuer
Trust and (ii) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to
be provided by the Issuer Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Issuer Trustees
and the Administrators shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust
Securities.
(b) On or before December 15 of each year during which any
Preferred Securities are outstanding, the Administrators shall furnish
to the Paying Agent such information as may be reasonably requested by
the Property Trustee in order that the Property Trustee may prepare the
information which it is required to report for such year on Internal
Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Code. Such information shall include the amount of original issue
discount includible in income for each outstanding Preferred Security
during such year.
Section 4.6. Payment of Taxes; Duties, Etc. of the Issuer
--------------------------------------------
Trust. Upon receipt under the Junior Subordinated Debentures of
- -----
Additional Sums, the Property Trustee, at the written direction of an
Administrator or the Depositor, shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Issuer Trust by the United States or any other taxing
authority.
21
<PAGE>
<PAGE>
Section 4.7. Payments under Indenture or Pursuant to Direct
----------------------------------------------
Actions. Any amount payable hereunder to any Holder of Preferred
- -------
Securities shall be reduced by the amount of any corresponding payment
such Holder (or any Owner related thereto) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
Section 4.8. Liability of the Holder of Common Securities.
--------------------------------------------
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7(c) of the
Indenture regarding allocation of expenses.
ARTICLE V
---------
TRUST SECURITIES CERTIFICATES
-----------------------------
Section 5.1. Initial Ownership. 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
Issuer Trust.
Section 5.2. The Trust Securities Certificates.
---------------------------------
(a) The Trust Securities Certificates shall be executed on
behalf of the Issuer Trust by manual or facsimile signature of at least
one Administrator, except as provided in Section 5.3. Trust Securities
Certificates bearing the signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on
behalf of the Issuer 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.
The Preferred Securities Certificate shall be issued in minimum
denominations of $10 and integral multiples of $10 in excess thereof. A
transferee of a Trust Securities Certificate shall become a Holder, and
shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully registered
Global Preferred Securities Certificates which will be deposited with or
on behalf of Cede as the Depositary's nominee and registered in the name
of Cede as the Depositary's nominee. Unless and until it is
exchangeable in whole or in part for the Preferred Securities in
definitive form, a global security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
(c) 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 5.3. Execution and Delivery of Trust Securities
-------------------------------------------
Certificates. On the Closing Date, and on any Option Closing Date, if
- ------------
applicable, an Administrator shall cause Trust Securities Certificates,
in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5,
as the case may be, to be executed on behalf of the Issuer Trust and
delivered to the Property Trustee and upon such delivery the Property
Trustee shall authenticate such Trust Securities Certificates and
deliver such Trust Securities Certificates upon the written order of the
Issuer Trust, executed by an Administrator thereof, without
22
<PAGE>
<PAGE>
further corporate action by the Issuer Trust, in authorized
denominations, and whereupon the Trust Securities evidenced by such
Trust Securities Certificates shall be duly and validly issued undivided
beneficial interests in the assets of the Issuer Trust and entitled to
the benefits of this Trust Agreement.
Section 5.4. Global Preferred Security.
-------------------------
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of the Clearing
Agency and delivered to such custodian therefor, and such Global
Preferred Security shall constitute a single Preferred Security for all
purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
a Global Preferred Security may not be exchanged in whole or in part for
Preferred Securities registered, and no transfer of the Global Preferred
Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred
Security, Cede or other nominee thereof unless (i) such Clearing Agency
advises the Depositor and the Issuer Trustees in writing that such
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global
Preferred Security, and the Depositor is unable to locate a qualified
successor within 90 days of receipt of such notice from the Depositary,
(ii) the Depositor at its option advises the Depositary in writing that
it elects to terminate the book-entry system through the Clearing
Agency, or (iii) there shall have occurred and be continuing an Event of
Default.
(c) If a Preferred Security is to be exchanged in whole or in
part for a beneficial interest in a Global Preferred Security, then
either (i) such Global Preferred Security shall be so surrendered for
exchange or cancellation as provided in this Article V or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal
to the Liquidation Amount of such other Preferred Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Preferred
Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b) and
as otherwise provided in this Article V, authenticate and deliver and an
Administrator shall execute any Preferred Securities issuable in
exchange for such Global Preferred Security (or any portion thereof) in
accordance with the instructions of the Clearing Agency. The Property
Trustee shall not be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected
in relying on, such instructions.
(d) Every Preferred Security registered, executed,
authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Preferred Security or any portion
thereof, whether pursuant to this Article V or Article IV or otherwise,
shall be executed, authenticated and delivered in the form of, and shall
be, a Global Preferred Security, unless such Global Preferred Security
is registered in the name of a Person other than the Clearing Agency for
such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner
of a Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred Security for
all purposes under this Trust Agreement and the Preferred Securities,
and Owners of beneficial interests in such Global Preferred Security
shall hold such interests pursuant to the applicable
23
<PAGE>
<PAGE>
Procedures and, except as otherwise provided herein, shall not be
entitled to receive physical delivery of any such Preferred Securities
in definitive form and shall not be considered the Holders thereof under
this Trust Agreement. Accordingly, any such Owner's beneficial interest
in the Global Preferred Security shall be shown only on, and the
transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee. Neither the Property
Trustee, the Securities Registrar nor the Depositor shall have any
liability in respect of any transfers effected by the Clearing Agency.
(f) The rights of Owners of beneficial interests in a Global
Preferred Security 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.
Section 5.5. Registration of Transfer and Exchange Generally;
------------------------------------------------
Certain Transfers and Exchanges; Preferred Securities Certificates.
- ------------------------------------------------------------------
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of
registering Preferred Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates in which the registrar
and transfer agent with respect to the Preferred Securities (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 5.11 in the case of Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. Such register is herein sometimes
referred to as the "Securities Register." The Property Trustee is
hereby appointed "Securities Registrar" for the purpose of registering
Preferred Securities and transfers of Preferred Securities as herein
provided.
Upon surrender for registration of transfer of any Preferred
Security at the offices or agencies of the Property Trustee designated
for that purpose, an Administrator shall execute and the Property
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of the
same series of any authorized denominations of like tenor and aggregate
Liquidation Amount and bearing such legends as may be required by this
Trust Agreement.
At the option of the Holder, Preferred Securities may be exchanged
for other Preferred Securities of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such legends as may
be required by this Trust Agreement, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, an Administrator
shall execute and the Property Trustee shall authenticate and deliver
the Preferred Securities that the Holder making the exchange is entitled
to receive.
All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Issuer Trust,
evidencing the same interest, and entitled to the same benefits under
this Trust Agreement, as the Preferred Securities surrendered upon such
transfer or exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized
in writing.
24
<PAGE>
<PAGE>
No service charge shall be made to a Holder for any transfer or
exchange of Preferred Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange
of Preferred Securities.
Neither the Issuer Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (i) to issue,
register the transfer of, or exchange any Preferred Security during a
period beginning at the opening of business 15 days before the day of
selection for redemption of Preferred Securities pursuant to Article IV
and ending at the close of business on the day of mailing of the notice
of redemption, or (ii) to register the transfer of or exchange any
Preferred Security so selected for redemption in whole or in part,
except, in the case of any such Preferred Security to be redeemed in
part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only
-------------------------------
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement. Any transfer or purported
transfer of any Trust Security not made in accordance with this Trust
Agreement shall be null and void.
(i) Non-Global Security to Non-Global Security. A Trust
------------------------------------------
Security that is not a Global Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery
in the form of another Trust Security that is not a Global
Preferred Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
--------------------
Preferred Securities shall be freely transferable.
(iii) Exchanges Between Global Preferred Security and Non-
----------------------------------------------------
Global Preferred Security. A beneficial interest in a Global
-------------------------
Preferred Security may be exchanged for a Preferred Security that
is not a Global Preferred Security as provided in Section 5.4.
Section 5.6. 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
Administrators 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 or a protected purchaser, the Administrators, or any one of
them, on behalf of the Issuer Trust shall execute and make available for
delivery, and the Property Trustee shall authenticate, 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 Administrators
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 Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.
Section 5.7. Persons Deemed Holders. The Issuer Trustees,
----------------------
the Administrators, the Securities Registrar, or the Depositor shall
treat the Person in whose name any Trust Securities are
25
<PAGE>
<PAGE>
registered in the Securities Register as the owner of such Trust
Securities for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the
Administrators, the Securities Registrar nor the Depositor shall be
bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
----------------------------------------------
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrators accountable
by reason of the disclosure of its name and address, regardless of the
source from which such information was derived.
Section 5.9. Maintenance of Office or Agency. The Property
-------------------------------
Trustee shall designate, with the consent of the Administrators, which
consent shall not be unreasonably withheld, 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 Issuer Trustees in respect of the Trust
Securities Certificates may be served. The Property Trustee initially
designates its Corporate Trust Office for such purposes. The Property
Trustee shall give prompt written notice to the Depositor, the
Administrators and the Holders of any change in the location of the
Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agent. The Paying Agent
---------------------------
shall make Distributions to Holders from the Payment Account and shall
report the amounts of such Distributions to the Property Trustee and the
Administrators. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account solely for the purpose of making
the Distributions referred to above. The Property Trustee may revoke
such power and remove any Paying Agent in its sole discretion. The
Paying Agent shall initially be the Property Trustee. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon
at least 30 days' written notice to the Administrators and the Property
Trustee. In the event that the Property Trustee shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority
to act be revoked, the Property Trustee shall appoint a successor (which
shall be a bank or trust company) that is reasonably acceptable to the
Administrators to act as Paying Agent. Such successor Paying Agent
appointed by the Property Trustee, or any additional Paying Agent
appointed by the Administrators, shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer 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 Holders in
trust for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. 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 Trust Agreement to the Paying Agent shall include any
co-paying agent chosen by the Property Trustee unless the context
requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor. On
-------------------------------------------
the Closing Date, and on any Option Closing Date, if applicable, the
Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. Neither the Depositor nor any successor Holder
of the Common Securities may transfer less than all of the Common
Securities, and the Depositor or any successor Holder may transfer the
Common Securities only (a) in connection with a consolidation or merger
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, or
(b) a transfer to an Affiliate of the Depositor in compliance with
applicable law (including the Securities Act
26
<PAGE>
<PAGE>
and applicable state securities and blue sky laws). To the fullest
extent permitted by law, any other attempted transfer of the Common
Securities shall be void. The Administrators shall cause each Common
Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR IN
INTEREST TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
Section 5.12. Notices to Clearing Agency. To the extent that
--------------------------
a notice or other communication to the Holders is required under this
Trust Agreement, for so long as Preferred Securities are represented by
a Global Preferred Securities Certificate, the Administrators and the
Property Trustee shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Rights of Holders.
-----------------
(a) The legal title to all Trust Property shall be vested at all
times in the Issuer Trust and shall be held and administered by the
Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Holders shall not have any right or title therein
other than the undivided beneficial interest in the assets of the Issuer
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 Issuer 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 Holders
against payment of the purchase price therefor will be validly issued,
fully paid and nonassessable undivided beneficial interests in the Trust
Property. Subject to Section 4.8 hereof, 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
Junior Subordinated Debentures fail, to declare the principal of all of
the Junior Subordinated Debentures to be immediately due and payable,
the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right to make such
declaration by a notice in writing to the Property Trustee, the
Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect
to the Junior Subordinated Debentures has been made and before a
judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, 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 on all of
the Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of the
Junior Subordinated Debentures,
27
<PAGE>
<PAGE>
(C) the principal of (and premium, if any, on) any
Junior Subordinated Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debentures, and
(D) 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 Junior
Subordinated Debentures, other than the non-payment of the
principal of the Junior Subordinated 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 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 Junior
Subordinated Debentures affected thereby. 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 Global
Preferred Securities, 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 5.13(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,
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 Junior Subordinated Debentures having
an aggregate principal amount equal to the aggregate Liquidation Amount
of the Preferred Securities of such Holder (a "Direct Action"). Except
as set forth in Sections 5.13(b) and 5.13(c) of this Trust Agreement, the
28
<PAGE>
<PAGE>
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
Junior Subordinated Debentures.
ARTICLE VI
----------
ACTS OF HOLDERS; MEETINGS; VOTING
---------------------------------
Section 6.1. Limitations on Holder's Voting Rights.
-------------------------------------
(a) Except as provided in this Trust Agreement 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 Issuer
Trust or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Trust Securities
Certificates be construed so as to constitute the Holders from time to
time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Issuer Trust, the Property Trustee
shall not (i) direct the time, method, or place of conducting any
proceeding for any remedy available to the Property Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Junior Subordinated Debentures, (ii) waive any past
default that may be waived under Section 5.13 of the Indenture,
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debentures shall be due and
payable, or (iv) consent to any amendment, modification, or termination
of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Amount of the
Preferred Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of Junior
Subordinated Debentures affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder
of Preferred Securities. The Property Trustee 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 with respect
to the Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that such action will not cause the Issuer
Trust to fail or cease to be treated as grantor trust for United States
federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Issuer Trust otherwise proposes to effect, (i) any action
that would adversely affect in any material respect the interests,
powers, preferences, or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution of the Issuer 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 a Majority in Liquidation Amount of
the 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 Issuer Trust fail or
cease to be treated as a grantor trust for United States federal income
tax purposes.
Section 6.2. Notice of Meetings. Notice of all meetings of
------------------
the Holders, stating the time, place, and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.8 to each
29
<PAGE>
<PAGE>
Holder 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 Holders.
-------------------
(a) No annual meeting of Holders is required to be held. The
Property Trustee, however, shall call a meeting of Holders to vote on
any matter upon the written request of the Holders of record of 25% or
more of the aggregate Liquidation Amount of the Preferred Securities and
the Administrators or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on
any matters as to which Holders are entitled to vote.
(b) Holders of a Majority in Liquidation Amount of the Preferred
Securities, present in person or represented by proxy, shall constitute
a quorum at any meeting of Holders of Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by
the Holders of record present, in person or by proxy, holding Preferred
Securities representing a Majority in Liquidation Amount of the
Preferred Securities held by the Holders present, either in person or by
proxy, at such meeting shall constitute the action of the Holders of
Preferred Securities, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.4. Voting Rights. Holders shall be entitled to one
-------------
vote for each $10 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Holders are
entitled to vote.
Section 6.5. Proxies, etc. At any meeting of Holders, any
------------
Holder 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 Property Trustee, or with such other officer or agent of
the Issuer Trust as the Property Trustee 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 Holders 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 Holder 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. Holder Action by Written Consent. Any action
--------------------------------
which may be taken by Holders at a meeting may be taken without a
meeting if Holders holding a Majority in Liquidation Amount of all Trust
Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other 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 Holders 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
30
<PAGE>
<PAGE>
provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators (or the Property Trustee if the
Administrators are unable or unwilling to act) may from time to time fix
a date, not more than 90 days prior to the date of any meeting of
Holders 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
Holders of record for such purposes.
Section 6.8. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Trust
Agreement to be given, made, or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered
to the Property Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Trust Agreement
and (subject to Section 8.1) conclusive in favor of the Issuer Trustees,
if made in the manner provided in this Section 6.8.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the
same deems sufficient.
(c) The ownership of Trust Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Trust Security shall
bind every future Holder of the same Trust Security and the Holder 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 Issuer Trustees, the
Administrators, or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation
Amount of such Trust Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all
or any part of such Liquidation Amount.
(f) If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Issuer Trustee
under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
31
<PAGE>
<PAGE>
Section 6.9. Inspection of Records. Upon reasonable notice
---------------------
to the Administrators and the Property Trustee, the records of the
Issuer Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's
interest as a Holder.
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 (and any successors thereto at the time of their appointment),
each severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of this Trust
Agreement.
(b) The execution, delivery, and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Property Trustee; and this
Trust Agreement has been duly executed and delivered by the Property
Trustee, and constitutes a legal, valid, and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally
and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Property
Trustee.
(d) At the Time of Delivery, the Property Trustee has not
knowingly created any Liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing,
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee; and this
Trust Agreement has been duly executed and delivered by the Delaware
Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' right generally
and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law).
32
<PAGE>
<PAGE>
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Delaware
Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to any state or Federal banking authority is required for
the execution, delivery or performance by the Delaware Trustee, of this
Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
Section 7.2. Representations and Warranties of the Depositor.
-----------------------------------------------
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of
Delivery on behalf of the Issuer Trust have been duly authorized and
will have been duly and validly executed, and, subject to payment
therefor, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of,
this Trust Agreement, and the Holders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by either the Property Trustee or the Delaware Trustee, as
the case may be, of this Trust Agreement.
ARTICLE VIII
------------
THE ISSUER TRUSTEES; THE ADMINISTRATORS
---------------------------------------
Section 8.1. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Issuer Trustees and
the Administrators 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 Issuer Trustees or the Administrators 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 or them. 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 Issuer Trustees or the Administrators shall
be subject to the provisions of this Section 8.1. Nothing in this Trust
Agreement shall be construed to release an Administrator or the Issuer
Trustees from liability for his or its own negligent action, his or its
own negligent failure to act, or his or its own willful misconduct. To
the extent that, at law or in equity, an Issuer Trustee or Administrator
has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to the
Issuer Trust or to any Holder for such Issuer Trustee's or
Administrator'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 Issuer Trustees and
Administrators otherwise
33
<PAGE>
<PAGE>
existing at law or in equity, are agreed by the Depositor and the
Holders to replace such other duties and liabilities of the Issuer
Trustees and Administrators.
(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 Holder, by his or its acceptance
of a Trust Security, agrees that he or it will look solely to the
revenue and proceeds from the Trust Property to the extent legally
available for distribution to it or him as herein provided and that
neither the Issuer Trustees nor the Administrators are personally liable
to it or him 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 Issuer Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of
the Property Trustee, in the Trust Indenture Act.
(c) The Property 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 Trust Agreement (including pursuant to
Section 10.10), and no implied covenants shall be read into this Trust
Agreement against the Property Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to Section 5.13 of
the Indenture), the Property Trustee shall enforce this Trust Agreement
for the benefit of the Holders and shall exercise such of the rights and
powers vested in it by this Trust 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 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) 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 Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this 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;
(ii) 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;
34
<PAGE>
<PAGE>
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust
Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to deal
with such Property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(v) 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;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor
with their respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the default or misconduct of
any other Issuer Trustee, the Administrators or the Depositor; and
(vii) no provision of this 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 exercise 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.
(e) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall either
Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
Section 8.2. Certain Notices.
---------------
(a) Within five Business Days after the occurrence of any Event
of Default actually known to a 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
Holders and the Administrators, unless such Event of Default shall have
been cured or waived.
(b) 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 Junior Subordinated Debentures pursuant to the Indenture, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Holders and the
Administrators, unless such exercise shall have been revoked.
35
<PAGE>
<PAGE>
(c) In the event the Property Trustee receives notice of the
Depositor's exercise of its right to shorten the stated maturity of the
Junior Subordinated Debentures as provided in Section 3.16 of the
Indenture, the Property Trustee shall give notice of such shortening of
the stated maturity to the Holders at least 30 but not more than 60 days
before the effective date thereof.
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 fully protected
in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(c) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or re-registration
thereof;
(d) the Property Trustee may consult with counsel of its own
choosing (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; 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;
(e) 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 Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to the
Property Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Trust Agreement;
(f) 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 Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(h) 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
36
<PAGE>
<PAGE>
action hereunder, the Property Trustee (i) may request instructions from
the Holders (which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the 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 fully protected in
acting in accordance with such instructions; and
(i) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this Trust
Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer Trustee or Administrator 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 any Issuer Trustee or Administrator 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 Issuer Trust, and
the Issuer Trustees and the Administrators do not assume any
responsibility for their correctness. The Issuer Trustees and the
Administrators shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debentures.
Section 8.5. May Hold Securities. Except as provided in the
-------------------
definition of the term "Outstanding" in Article I, the Administrators,
any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer 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 Issuer Trust with the same rights it
would have if it were not an Administrator, Issuer Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees. The Depositor
-----------------------------
agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Issuer Trustees and the Administrators upon
request for all reasonable expenses, disbursements and advances
incurred or made by the Issuer Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any such expense,
disbursement, or advance as may be attributable to the Issuer Trustees'
bad faith, negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any
officer, director, shareholder, employee, representative or agent of any
Issuer Trustee, and (v) any employee or agent of the Issuer Trust
(referred to herein as an "Indemnified Person"), from and against any
loss, damage, liability, tax (excluding income taxes, other than taxes
referred to in Sections 4.5 and 4.6 hereunder), penalty, expense or
claim of any kind or nature whatsoever incurred by such Indemnified
Person arising out of or in connection with the creation, operation or
dissolution of the Issuer Trust or any act or
37
<PAGE>
<PAGE>
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Issuer 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
bad faith, negligence or willful misconduct with respect to such acts or
omissions. The indemnification provided to an Indemnified Party in this
Trust Agreement shall not be exclusive and nothing in this Trust
Agreement shall limit any indemnification for actions taken in
connection with this Trust Agreement or otherwise which may be available
or provided to such Indemnified Party under other sources.
The provisions of this Section 8.6 shall survive the termination
of this Trust Agreement.
No Issuer 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, any Administrator and any Issuer 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 Issuer Trust, and the Issuer 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 Issuer Trust, shall not be deemed wrongful or
improper. Neither the Depositor, any Administrator, nor any Issuer
Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a
character that, if presented to the Issuer Trust, could be taken by the
Issuer Trust, and the Depositor, any Administrator or any Issuer 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 Issuer 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 and Administrators.
- ------------------------------
(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 a national or state chartered bank and 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 VIII. At the time of appointment, the Property Trustee
must have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator 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. An employee, officer or
Affiliate of the Depositor may serve as an Administrator.
38
<PAGE>
<PAGE>
(c) There shall at all times be a Delaware Trustee. 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.
---------------------
(a) 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.
(b) The Guarantee Agreement and the Indenture shall be deemed to
be specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
--------------------------------
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which
any part of the Trust Property may at the time be located, the Property
Trustee shall have power to appoint, and upon the written request of the
Property Trustee, the Depositor and the Administrators shall for such
purpose join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or any part
of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right
or power deemed necessary or desirable, subject to the other provisions
of this Section 8.9. Any co-trustee or separate trustee appointed
pursuant to this Section 8.9 shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States
that shall act through one or more persons authorized to bind such
entity.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed by one or more
Administrators, and 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 Property Trustees specified hereunder, shall be
exercised, solely by the Property Trustee and not by such co-
trustee or separate trustee.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
39
<PAGE>
<PAGE>
imposed upon and exercised or performed by the Property Trustee
and such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner
provided in this Section 8.9.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of any Issuer Trustee (the
"Relevant Trustee") and no appointment of a successor Issuer Trustee
pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Issuer Trustee in accordance
with the applicable requirements of Section 8.11.
(b) Subject to Section 8.10(a), a Relevant Trustee may resign at
any time by giving written notice thereof to the Holders. The Relevant
Trustee shall appoint a successor by requesting from at least three
Persons meeting the eligibility requirements its expenses and charges to
serve as the successor Issuer Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest
expenses and charges, subject to the prior consent of the Depositor
which consent shall not be unreasonably withheld. If the instrument of
acceptance by the successor Issuer Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 60 days
after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Issuer Trust, any court of competent
jurisdiction for the appointment of a successor Issuer Trustee.
(c) The Property Trustee or the Delaware Trustee may be removed
at any 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 Issuer Trust) (i) for Cause, or
(ii) if a Debenture Event of Default shall have occurred and be
continuing at any time.
40
<PAGE>
<PAGE>
(d) If a resigning Relevant Trustee shall fail to appoint a
successor, or if a Relevant Trustee shall be removed or become incapable
of acting as Issuer Trustee, or if any vacancy shall occur in the office
of any Issuer Trustee for any cause, the Holders of the Preferred
Securities, by Act of the Holders of record of not less than 25%
aggregate Liquidation Amount of the Preferred Securities then
Outstanding delivered to such Relevant Trustee, shall promptly appoint a
successor Issuer Trustee or Trustees, and such successor Issuer Trustee
shall comply with the applicable requirements of Section 8.11. If no
successor Issuer Trustee shall have been so appointed by the Holders of
the Preferred Securities and accepted appointment in the manner required
by Section 8.11, any Holder, on behalf of himself and all others
similarly situated, or any other Issuer Trustee, may petition any court
in the State of Delaware for the appointment of a successor Issuer
Trustee.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Relevant Trustee and each appointment of a
successor Issuer Trustee to all Holders in the manner provided in
Section 10.8 and shall give notice to the Depositor and to the
Administrators. Each notice shall include the name of the Relevant
Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the Property Trustee
following the procedures regarding expenses and charges set forth above
(with the successor in each case being a Person who satisfies the
eligibility requirement for Delaware Trustee set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Issuer
Trustee, the retiring Relevant Trustee and each such successor Issuer
Trustee with respect to the Trust Securities shall execute, acknowledge
and deliver an instrument wherein each successor Issuer Trustee shall
accept such appointment and which shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in,
each successor Issuer Trustee all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities
and the Issuer Trust, and upon the execution and delivery of such
instrument the resignation or removal of the retiring Relevant Trustee
shall become effective to the extent provided therein and each such
successor Issuer Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the Relevant Trustee; but, on request of the Issuer Trust or any
successor Issuer Trustee such Relevant Trustee shall duly assign,
transfer and deliver to such successor Issuer Trustee all Trust
Property, all proceeds thereof and money held by such Relevant Trustee
hereunder with respect to the Trust Securities and the Issuer Trust.
(b) Upon request of any such successor Issuer Trustee, the
Issuer Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Issuer Trustee all
such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
(c) No successor Issuer Trustee shall accept its appointment
unless at the time of such acceptance such successor Issuer Trustee
shall be qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession
-----------------------------------------------
to Business. Any Person into which the Property Trustee or the Delaware
- -----------
Trustee may be merged or converted or with which it may be
41
<PAGE>
<PAGE>
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
Section 8.13. Preferential Collection of Claims Against
-----------------------------------------
Depositor or Issuer Trust. If and when the Property Trustee shall be or
- -------------------------
become a creditor of the Depositor (or any other obligor upon Junior
Subordinated Debentures or the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Depositor or the Issuer Trust (or
any such other obligor) as is required by the Trust Indenture Act.
Section 8.14. Trustee May File Proofs of Claim. In case of
--------------------------------
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition, or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the
Trust Securities or the property of the Issuer Trust or of such other
obligor, the Property Trustee (irrespective of whether any Distributions
on the Trust Securities shall then be due and payable and irrespective
of whether the Property Trustee shall have made any demand on the Issuer
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 monies or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Property Trustee
and, in the event the Property Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Property Trustee
any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
compensation affecting the 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.
Section 8.15. Reports by Property Trustee.
---------------------------
(a) Within 60 days of January 31 of each year commencing with
January 31, 2000, the Property Trustee shall transmit to all Holders in
accordance with Section 10.8, and to the Depositor, a brief report dated
as of the immediately preceding January 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; and
42
<PAGE>
<PAGE>
(ii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any
action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in
its opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Holders
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 as set forth in
Section 10.10 of this Trust Agreement.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
Section 8.16. Reports to the Property Trustee. The Depositor
-------------------------------
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee such documents, reports and information as required
by Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust
Indenture Act, as set forth in Section 10.10 of this Trust Agreement.
The Depositor and the Administrators shall annually file with the
Property Trustee a certificate specifying whether such Person is in
compliance with all the terms and covenants applicable to such Person
hereunder.
Section 8.17. Evidence of Compliance with Conditions
--------------------------------------
Precedent. Each of the Depositor and the Administrators on behalf of
- ---------
the Issuer 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 as set forth in Section 10.10
of this Trust Agreement. 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 8.18. Number of Issuer Trustees.
-------------------------
(a) The number of Issuer Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which event
the number of Issuer Trustees shall be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to dissolve, terminate or annul the Issuer Trust or
terminate this Trust Agreement.
Section 8.19. Delegation of Power.
-------------------
(a) Any Administrator 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) or making any governmental filing.
(b) The Administrators shall have power to delegate from time to
time to such of their number the doing of such things and the execution
of such instruments either in the name of the Issuer
43
<PAGE>
<PAGE>
Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
Section 8.20. Appointment of Administrators.
-----------------------------
(a) The Administrators (other than the initial Administrators)
shall be appointed by the Holders of a Majority in Liquidation Amount of
the Common Securities and all Administrators (including the initial
Administrators) may be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities or may resign at any time.
If at any time there is no Administrator, the Property Trustee or any
Holder who has been a Holder of Trust Securities for at least six months
may petition any court of competent jurisdiction for the appointment of
one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.20, the Administrators
in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all the powers granted to
the Administrators and shall discharge all the duties imposed upon the
Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrator or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Holders
of a Majority in Liquidation Amount of the Common Securities,
incompetent, or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy
and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor in each case being
a Person who satisfies the eligibility requirement for Administrators or
Delaware Trustee, as the case may be, set forth in Section 8.7).
(d) Except as otherwise provided in this Trust Agreement or by
applicable law, any one Administrator may execute any document or
otherwise take any action which the Administrators are authorized to
take under this Trust Agreement.
ARTICLE IX
----------
DISSOLUTION, LIQUIDATION AND MERGER
-----------------------------------
Section 9.1. Dissolution Upon Expiration Date. Unless
--------------------------------
earlier dissolved, the Issuer Trust shall automatically dissolve on
August 2, 2030 (the "Expiration Date").
Section 9.2. Early Dissolution. The first to occur of any of
-----------------
the following events is an "Early Termination Event," upon the
occurrence of which the Issuer Trust shall dissolve:
(a) the occurrence of any Bankruptcy Event with respect to the
Depositor, unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall refer
instead to any Bankruptcy Event with respect to the successor Holder of
the Common Securities;
(b) delivery of the written direction to the Property Trustee
from the Holder of the Common Securities at any time to dissolve the
Issuer Trust and, after satisfaction of liabilities to creditors of the
44
<PAGE>
<PAGE>
Issuer Trust as provided by applicable law, to distribute the Junior
Subordinated Debentures to Holders in exchange for the Preferred
Securities (which direction, subject to Section 9.4(a), is optional and
wholly within the discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Junior Subordinated
Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by
a court of competent jurisdiction.
Section 9.3. Termination. The respective obligations and
-----------
responsibilities of the Issuer Trustees, the Administrators and the
Issuer Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property
Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to
Section 4.2, (b) the payment of any expenses owed by the Issuer Trust,
(c) the discharge of all administrative duties of the Administrators,
including the performance of any tax reporting obligations with respect
to the Issuer Trust or the Holders, 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.
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 Issuer
Trust shall be liquidated by the Property Trustee as expeditiously as
the Property Trustee determines to be possible by distributing, after
satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to each Holder a Like Amount of Junior Subordinated
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 15 nor more than 45 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Junior Subordinated
Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Junior Subordinated Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrators 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 Issuer Trust and distribution of the
Junior Subordinated Debentures to Holders, the Property Trustee shall
establish a record date for such distribution (which shall be not more
than 30 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 Junior Subordinated Debentures in exchange for the
Outstanding Trust Securities Certificates.
45
<PAGE>
<PAGE>
(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) the Clearing Agency for the Preferred Securities or
its nominee, as the registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or
certificates representing the Junior Subordinated Debentures to be
delivered upon such distribution with respect to Preferred Securities
held by the Clearing Agency or its nominee, and (iii) any Trust
Securities Certificates not held by the Clearing Agency for the
Preferred Securities or its nominee as specified in clause (ii) above
will be deemed to represent Junior Subordinated Debentures having a
principal amount equal to the stated Liquidation Amount of the Trust
Securities represented thereby and bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such
Trust Securities until such certificates are presented to the Securities
Registrar for transfer or reissuance.
(d) If, 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 Junior
Subordinated Debentures is not practical, or if any Early Termination
Event specified in clause (c) of Section 9.2 occurs, the Trust Property
shall be liquidated, and the Issuer Trust shall be liquidated by the
Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution of the Issuer Trust, Holders
will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities
to creditors of the Issuer Trust as provided by applicable law, an
amount equal to the aggregate of the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in
part because the Issuer 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 Issuer Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holders of the Common Securities will be
entitled to receive Liquidation Distributions upon any such liquidation
pro rata (determined as aforesaid) with Holders of Preferred Securities,
except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the
Common Securities as provided in Section 4.3.
(e) Following the dissolution of the Issuer Trust and after the
completion of the winding up of the affairs of the Issuer Trust, one of
the Issuer Trustees shall file a certificate of cancellation with the
Delaware Secretary of State.
Section 9.5. Mergers, Consolidations, Amalgamations or
-----------------------------------------
Replacements of the Issuer Trust. The Issuer 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
entity, except pursuant to this Section 9.5 and Section 9.4. At the
request of the Holders of the Common Securities, and with the consent of
the Holders of a Majority in Liquidation Amount of the Preferred
Securities but without the consent of the Delaware Trustee or the
Property Trustee, the Issuer 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, however, that (a) such
successor entity either (i) expressly assumes all of the obligations of
the Issuer Trust with respect to the Securities or (ii) 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 have the same priority as the Preferred
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise and which are then listed or listed upon
notification of issuance on any national securities exchange or automated
quotation system on which the Trust Preferred Securities are then listed,
(b) a trustee of such successor entity possessing the same powers and
46
<PAGE>
<PAGE>
duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (c) 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 if the Preferred
Securities were rated by any nationally recognized statistical rating
organization immediately prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, (d) 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, (e) such successor entity
has a purpose substantially identical to that of the Issuer Trust,
(f) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Issuer Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters
to the effect that (i) 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 (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor
such successor entity will be required to register as an "investment
company" under the Investment Company Act, and (g) the Depositor or any
permitted transferee to whom it has transferred the Common Securities
hereunder owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer 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 Issuer Trust or the successor entity to fail
or cease to be classified as a grantor trust for United States federal
income tax purposes. Any merger or similar agreement shall be executed
by the Administrators on behalf of the Issuer Trust.
Section 9.6. Listing of the Junior Subordinated Debentures. In the
event that the Junior Subordinated Debentures are distributed to the
holders of the Preferred Securities for any reason, the Depositor and
the Issuer Trust will use their respective best efforts to cause the
Junior Subordinated Debentures to be listed, subject to notice of
issuance, at the time of such distribution, upon the American Stock
Exchange, such other securities exchange or exchanges and/or the
Nasdaq National Market upon which the Preferred Securities are then listed.
The Depositor will thereafter comply with all registration, filing and
reporting requirements of the American Stock Exchange or such other
exchange or Nasdaq National Market upon which the Junior Subordinated
Debentures are listed.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 10.1. Limitation of Rights of Holders. Except as set
-------------------------------
forth in Section 9.2, the bankruptcy, dissolution, termination, death or
incapacity of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement or
dissolve, terminate or annul the Issuer Trust, nor entitle the legal
representatives or heirs of such Person or any Holder 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 Administrators and the Holders of a Majority in
Liquidation Amount of the Common Securities, without the consent of any
Holder of the Preferred Securities, (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; provided,
however, that such amendment shall not adversely affect in any material
respect the interests of any Holder or (ii) to modify, eliminate, or add
to any provisions of this Trust Agreement to such extent as shall be
47
<PAGE>
<PAGE>
necessary to ensure that the Issuer Trust will be classified as a grantor
trust (and not an association taxable as a corporation) for United
States federal income tax purposes at any time that any Trust Securities
are Outstanding or to ensure that the Issuer Trust will not be required
to register as an "investment company" under the Investment Company Act.
(b) Except as provided in Section 6.1(c) or Section 10.2(c), any
provision of this Trust Agreement may be amended by the Property
Trustee, the Administrators, and the Holders of a Majority in
Liquidation Amount of the Common Securities with (i) the consent of
Holders of a Majority in Liquidation Amount of the Preferred Securities
and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the
Issuer Trustees in accordance with such amendment will not cause the
Issuer Trust to fail or cease to be classified as a grantor trust for
United States federal income tax purposes or affect the Issuer Trust's
exemption from status of an "investment company" under the Investment
Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder (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 Holder 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 Holders (such consent being
obtained in accordance with Section 6.3 or 6.6), this Section 10.2(c)
may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Issuer Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Issuer Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act or to fail or cease to be
classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Administrators,
this Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrators or the Property Trustee 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.
(h) Any amendments to this Trust Agreement pursuant to
Section 10.2(a) shall become effective when notice of such amendment is
given to the Holders of the Trust Securities.
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.
48
<PAGE>
<PAGE>
Section 10.4. Governing Law. THIS TRUST AGREEMENT AND THE
-------------
RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE
DEPOSITOR, THE ISSUER TRUSTEES, AND THE ADMINISTRATORS WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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 Section 4.2(d)), except that, if such Business Day
is in the next succeeding calendar year, payment on any Trust Security
shall be made on the immediately preceding Business Day, in each case,
with the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount for
the period after such date.
Section 10.6. Successors and Assigns. This Trust Agreement
----------------------
shall be binding upon and shall inure to the benefit of any successor to
the Depositor, the Issuer Trust, the Administrators, and any Issuer
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 VIII 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.
----------------------------
(a) Any report, notice, demand or other communication that by
any provision of this Trust Agreement is required or permitted to be
given or served to or upon any Holder 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, (i) in the case of a Holder of Preferred Securities, to
such Holder as such Holder's name and address may appear on the
Securities Register; and (ii) in the case of the Holder of Common
Securities or the Depositor, to Allegiant Bancorp, Inc., 2122 Kratky
Road, St. Louis, Missouri 63114, Attention: Corporate Secretary,
facsimile no.: (314) 692-8200 or to such other address as may be
specified in a written notice by the Depositor to the Property Trustee.
Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by
the Depositor.
(b) 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 Issuer Trust, the Property Trustee, the
Delaware Trustee, the Administrators, or the Issuer Trust shall be given
in writing addressed (until another address is published by the Issuer
Trust) as follows: (i) with respect to the Property Trustee to Bankers
Trust Company, Four Albany Street, 4th Floor, New York, NY 10006,
Attention: Corporate Trust and Agency Group Corporate Market Services;
(ii) with respect to the Delaware Trustee to Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Road, Suite 200, Wilmington, Delaware, 19805-1266, Attention: Corporate
Trust Administration, and (iii) with respect to the Administrators, to
them at the address above for notices to the Depositor, marked
"Attention: Office
49
<PAGE>
<PAGE>
of the Secretary." Such notice, demand or other communication to or
upon the Issuer Trust or the Property Trustee shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing
by the Issuer Trust, the Property Trustee, or such Administrator.
Section 10.9. Agreement Not to Petition. Each of the Issuer
-------------------------
Trustees, the Administrators and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Issuer 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 Holders, 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 Issuer 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 estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the Issuer
Trust may assert. If any Issuer Trustee or Administrator takes action
in violation of this Section 10.9, the Depositor agrees, for the benefit
of the Holders, 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 such Person against the Depositor or the
commencement of such action and raise the defense that such Person has
agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the
Depositor or the Issuer Trust may assert. The provisions of this
Section 10.9 shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust
-----------------------------------------
Indenture Act.
- -------------
(a) Trust Indenture Act; Application. (i) This Trust Agreement
--------------------------------
is subject to the provisions of the Trust Indenture Act that are
required to be a part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions; (ii) if and to the extent
that any provision of this Trust 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; (iii) for
purposes of this Trust Agreement, the Property Trustee, to the extent
permitted by applicable law and/or the rules and regulations of the
Commission, shall be the only Issuer Trustee which is a trustee for the
purposes of the Trust Indenture Act; and (iv) the application of the
Trust Indenture Act to this Trust Agreement shall not affect the nature
of the Preferred Securities and the Common Securities as equity
securities representing undivided beneficial interests in the assets of
the Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the
----------------------------------------
Depositor and the Administrators on behalf of the Issuer Trust shall
provide the Property Trustee with such information as is required under
Section 312(a) of the Trust Indenture Act at the times and in the manner
provided in Section 312(a) and (ii) the Property Trustee shall comply
with its obligations under Sections 310(b), 311 and 312(b) of the Trust
Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after
-------------------------------
January 31 of each year, commencing January 31, 2000, the Property
Trustee shall provide to the Holders of the Trust Securities such
reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form, in the manner and at the times provided by Section 313
of the Trust Indenture Act. The Property Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
50
<PAGE>
<PAGE>
(d) Periodic Reports to Property Trustee. Each of the Depositor
------------------------------------
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee, the Commission and the Holders of the Trust
Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act
and the compliance certificates required by Section 314(a)(4) and (c) of
the Trust Indenture Act (provided that any certificate to be provided
pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer
Trust).
(e) Evidence of Compliance with Conditions Precedent. Each of
------------------------------------------------
the Depositor and the Administrators on behalf of the Issuer Trust shall
provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement which
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 pursuant
to Section 314(c) shall comply with Section 314(e) of the Trust
Indenture Act.
(f) Disclosure of Information. The disclosure of information as
-------------------------
to the names and addresses of the Holders of Trust Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed
to be a violation of any existing law or any law hereafter enacted which
does not specifically refer to Section 312 of the Trust Indenture Act,
nor shall the Property Trustee be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 10.11. Acceptance of Terms of Trust Agreement,
----------------------------------------
Guarantee and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY
- -----------------------
OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE
THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may contain
------------
more than one counterpart of the signature page and this Trust Agreement
may be executed by the affixing of the signature of each of the Issuer
Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a
single signature paper.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
51
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed as of the day and year
first above written.
ALLEGIANT BANCORP, INC., as Depositor
By: /s/ Shaun R. Hayes
---------------------------------------
Shaun R. Hayes
President and Chief Executive Officer
BANKERS TRUST COMPANY, as Property Trustee
By: /s/ Ednora G. Linares
---------------------------------------
Name: Ednora G. Linares
Title: Assistant Vice President
BANKERS TRUST (DELAWARE), as Delaware
Trustee
By: /s/ M. Lisa Wilkins
---------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Vice President
Subscribed to and Accepted by, as the Initial Administrators:
/s/ Shaun R. Hayes
- ---------------------------------------
Shaun R. Hayes
/s/ Thomas A. Daiber
- ---------------------------------------
Thomas A. Daiber
52
<PAGE>
<PAGE>
EXHIBIT A
---------
[CERTIFICATE OF TRUST FILED WITH DELAWARE SECRETARY OF STATE]
53
<PAGE>
<PAGE>
EXHIBIT B
---------
[FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
54
<PAGE>
<PAGE>
EXHIBIT C
---------
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A
SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number: C-1 Number of Common Securities: 58,442
Certificate Evidencing Common Securities
of
Allegiant Capital Trust I
9.875% Common Securities
(liquidation amount $10 per Common Security)
Allegiant Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that Allegiant Bancorp, Inc. (the "Holder") is the registered
owner of Fifty Eight Thousand Four Hundred and Forty Two (58,442) common
securities of the Issuer Trust representing undivided beneficial interest
in the assets of the Issuer Trust and designated the Allegiant Capital
Trust I 9.875% Common Securities (liquidation amount $10 per Common
Security) (the "Common Securities"). Except in accordance with Section
5.11 of the Trust Agreement (as defined below), the Common Securities
are not transferable and any attempted transfer hereof other than in
accordance therewith 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
Issuer Trust, dated as of August 2, 1999, as the same may be amended from
time to time (the "Trust Agreement") among Allegiant Bancorp, Inc., as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust
(Delaware), as Delaware Trustee, the Administrators named therein and
the Holders of Trust Securities, including the designation of the terms
of the Common Securities as set forth therein. The Issuer Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Issuer Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in
the Trust Agreement.
This Common Security shall be governed by the laws of the State
of Delaware (without giving effect to conflict of laws principles).
55
<PAGE>
<PAGE>
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this 2nd day of August, 1999 on behalf
of the Issuer Trust.
Allegiant Capital Trust I
By:
---------------------------------
Shaun R. Hayes, Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
---------------------------------
Name:
Authorized Signatory
56
<PAGE>
<PAGE>
EXHIBIT D
---------
[IF THE PREFERRED SECURITY CERTIFICATE IS TO BE A GLOBAL PREFERRED
SECURITY CERTIFICATE, INSERT - This Preferred Security Certificate is a
Global Preferred Security Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Preferred Security
Certificate is exchangeable for Preferred Security Certificates
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 may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to Allegiant Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred
Security Certificate issued is registered in the name of such nominee as
is requested by an authorized representative of DTC (and any payment is
made to such entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, has
an interest herein.]
57
<PAGE>
<PAGE>
CERTIFICATE NUMBER: P-1 NUMBER OF PREFERRED SECURITIES: 1,500,000
CUSIP NO. 01747Q 207
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
ALLEGIANT CAPITAL TRUST I
9.875% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
Allegiant Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that Cede & Co. (the "Holder") is the registered owner of
$15,000,000 aggregate liquidation amount of preferred securities of the
Issuer Trust representing a preferred undivided beneficial interest in
the assets of the Issuer Trust and designated the Allegiant Capital
Trust I 9.875% Preferred Securities (liquidation amount $10 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and the records of the Issuer 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 5.5
of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Issuer Trust, dated as of August 2,
1999, as the same may be amended from time to time (the "Trust
Agreement"), among Allegiant Bancorp, Inc., as Depositor, Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and the Administrators named therein, the Holders of Trust
Securities, including the designation of the terms of the Preferred
Securities as set forth therein. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by Allegiant Bancorp, Inc., a
Missouri corporation, and Bankers Trust Company, as Guarantee Trustee,
dated as of August 2, 1999 , as the same may be amended from time to
time (the "Guarantee Agreement"), to the extent provided therein. The
Issuer Trust will furnish a copy of the Trust Agreement and the Guarantee
Agreement to the Holder without charge upon written request to the Issuer
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Security shall be governed by the laws of the State
of Delaware (without giving effect to conflict of laws principles).
58
<PAGE>
<PAGE>
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this 2nd day of August, 1999.
ALLEGIANT CAPITAL TRUST I
By:
----------------------------------
Shaun R. Hayes, Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
---------------------------------
Name:
Authorized Signatory
59
<PAGE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
------------------------------------------------------
(Insert assignee's name and 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 Issuer 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.
60
<PAGE>
Exhibit 11.1
<TABLE>
COMPUTATION OF EARNINGS PER SHARE
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
---------------------- ----------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
(In thousands, except share and per share data)
<S> <C> <C> <C> <C>
Average common shares outstanding 6,581,451 6,201,733 6,566,643 6,164,965
Average common stock equivalents of
warrants and options outstanding - based
on the treasury stock method using market
price 44,313 513,270 86,482 508,750
---------- ---------- ---------- ----------
6,625,764 6,715,003 6,653,125 6,673,715
========== ========== ========== ==========
Net income $ 1,345 $ 1,077 $ 2,347 $ 1,704
Basic earnings per common share 0.20 0.17 0.36 0.28
Diluted earnings per common share 0.20 0.16 0.35 0.26
</TABLE>
30
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This schedule contains information extracted from Allegiant Bancorp, Inc.'s
quarterly report on Form 10-Q for the quarter ended June 30, 1999 and is
qualified in its entirety by reference to such report.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 11,012
<INT-BEARING-DEPOSITS> 439,819
<FED-FUNDS-SOLD> 4
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 46,264
<INVESTMENTS-CARRYING> 10,310
<INVESTMENTS-MARKET> 10,349
<LOANS> 543,627
<ALLOWANCE> 7,085
<TOTAL-ASSETS> 638,166
<DEPOSITS> 489,816
<SHORT-TERM> 58,664
<LIABILITIES-OTHER> 2,460
<LONG-TERM> 37,275
0
0
<COMMON> 66
<OTHER-SE> 49,885
<TOTAL-LIABILITIES-AND-EQUITY> 638,166
<INTEREST-LOAN> 22,543
<INTEREST-INVEST> 1,588
<INTEREST-OTHER> 102
<INTEREST-TOTAL> 24,233
<INTEREST-DEPOSIT> 9,794
<INTEREST-EXPENSE> 12,238
<INTEREST-INCOME-NET> 11,995
<LOAN-LOSSES> 1,012
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 9,512
<INCOME-PRETAX> 3,913
<INCOME-PRE-EXTRAORDINARY> 2,347
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,347
<EPS-BASIC> 0.357
<EPS-DILUTED> 0.353
<YIELD-ACTUAL> 8.46
<LOANS-NON> 666
<LOANS-PAST> 167
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 6,442
<CHARGE-OFFS> 426
<RECOVERIES> 57
<ALLOWANCE-CLOSE> 7,085
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
