================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
BANKUNITED FINANCIAL CORPORATION,
AS DEPOSITOR,
THE BANK OF NEW YORK,
AS PROPERTY TRUSTEE,
THE BANK OF NEW YORK (DELAWARE),
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MARCH 24, 1997
BANKUNITED CAPITAL
================================================================================
BANKUNITED CAPITAL
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)
(Section) 311 (a)............................................................................ 8.8
(b)............................................................................ 8.13
(c)............................................................................ 8.13
(Section) 312 (a)............................................................................ 5.7
(b)............................................................................ 5.7
(c)............................................................................ 5.7
(Section) 313 (a)............................................................................ 8.14(a)
(a)(4)......................................................................... 8.14(b)
(b)............................................................................ 8.14(b)
(c)............................................................................ 10.8
(d)............................................................................ 8.14(c)
(Section) 314 (a)............................................................................ 8.15
(b)............................................................................ Not Applicable
(c)(1)......................................................................... 8.16
(c)(2)......................................................................... 8.16
(c)(3)......................................................................... Not Applicable
(d)............................................................................ Not Applicable
(e)............................................................................ 1.1, 8.16
(Section) 315 (a)............................................................................ 8.1(a), 8.3(a)
(b)............................................................................ 8.2, 10.8
(c)............................................................................ 8.1(a)
(d)............................................................................ 8.1, 8.3
(e)............................................................................ Not Applicable
(Section) 316 (a)............................................................................ Not Applicable
(a)(1)(A)...................................................................... Not Applicable
(a)(1)(B)...................................................................... Not Applicable
(a)(2)......................................................................... Not Applicable
(b)............................................................................ 5.14
(c)............................................................................ 6.7
(Section) 317 (a)(1)......................................................................... Not Applicable
(a)(2)......................................................................... Not Applicable
(b)............................................................................ 5.9
(Section) 318 (a)............................................................................ 10.10
-------------
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I. DEFINED TERMS 1
Section 1.1. Definitions..........................................................1
ARTICLE II. CONTINUATION OF THE 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; Organization Expenses.......11
Section 2.4. Issuance of the Preferred Securities................................12
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures............................................12
Section 2.6. Declaration of Trust................................................12
Section 2.7. Authorization to Enter into Certain Transactions....................13
Section 2.8. Assets of Trust.....................................................16
Section 2.9. Title to Trust Property.............................................17
ARTICLE III. PAYMENT ACCOUNT.................................................................17
Section 3.1. Payment Account.....................................................17
ARTICLE IV. DISTRIBUTIONS; REDEMPTION........................................................17
Section 4.1. Distributions.......................................................17
Section 4.2. Redemption..........................................................18
Section 4.3. Subordination of Common Securities..................................21
Section 4.4. Payment Procedures..................................................21
Section 4.5. Tax Returns and Reports.............................................22
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust........................22
Section 4.7. Payments under Indenture or Pursuant to Direct Actions..............22
ARTICLE V. TRUST SECURITIES..................................................................22
Section 5.1. Initial Ownership...................................................22
Section 5.2. The Trust Securities................................................22
Section 5.3. Execution and Delivery of Trust Securities..........................23
Section 5.4. Global Preferred Securities.........................................23
Section 5.5. Registration of Transfer and Exchange of Preferred Securities.......25
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..29
Section 5.7. Persons Deemed Securityholders......................................29
Section 5.8. Access to List of Securityholders' Names and Addresses..............30
Section 5.9. Maintenance of Office or Agency.....................................30
Section 5.10. Appointment of Paying Agent.........................................30
Section 5.11. Ownership of Common Securities by Depositor.........................31
Section 5.12. Notices to Clearing Agency..........................................31
Section 5.13. Definitive Preferred Securities and Temporary Preferred Securities..31
Section 5.14. Rights of Securityholders...........................................32
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING........................................34
Section 6.1. Limitations on Voting Rights........................................34
Section 6.2. Notice of Meetings..................................................35
Section 6.3. Meetings of Preferred Securityholders...............................35
Section 6.4. Voting Rights.......................................................36
Section 6.5. Proxies, etc........................................................36
Section 6.6. Securityholder Action by Written Consent............................36
Section 6.7. Record Date for Voting and Other Purposes...........................36
Section 6.8. Acts of Securityholders.............................................36
Section 6.9. Inspection of Records...............................................37
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...................................................38
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee..............................................38
Section 7.2. Representations and Warranties of Depositor.........................39
ARTICLE VIII. THE TRUSTEES...................................................................39
Section 8.1. Certain Duties and Responsibilities.................................39
Section 8.2. Certain Notices.....................................................41
Section 8.3. Certain Rights of Property Trustee..................................41
Section 8.4. Not Responsible for Recitals or Issuance of Securities..............44
Section 8.5. May Hold Securities.................................................44
Section 8.6. Compensation; Indemnity; Fees.......................................44
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees........45
Section 8.8. Conflicting Interests...............................................45
Section 8.9. Co-Trustees and Separate Trustee....................................46
Section 8.10. Resignation and Removal; Appointment of Successor...................47
Section 8.11. Acceptance of Appointment by Successor..............................48
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.........49
Section 8.13. Preferential Collection of Claims Against Depositor or Trust........49
Section 8.14. Reports by Property Trustee.........................................50
Section 8.15. Reports to the Property Trustee.....................................51
Section 8.16. Evidence of Compliance with Conditions Precedent....................51
Section 8.17. Number of Trustees..................................................51
Section 8.18. Delegation of Power.................................................52
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER..............................................52
Section 9.1. Termination Upon Expiration Date....................................52
Section 9.2. Early Termination...................................................52
Section 9.3. Termination.........................................................53
Section 9.4. Liquidation.........................................................53
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust......................................................54
ARTICLE X. MISCELLANEOUS PROVISIONS..........................................................55
Section 10.1. Limitation of Rights of Securityholders.............................55
Section 10.2. Amendment...........................................................55
Section 10.3. Separability........................................................57
Section 10.4 Governing Law.......................................................57
Section 10.5. Payments Due on Non-Business Day....................................57
Section 10.6. Successor...........................................................57
Section 10.7. Headings............................................................57
Section 10.8. Reports, Notices and Demands........................................57
Section 10.9. Agreement Not to Petition...........................................58
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..............58
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture ....59
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 24, 1997, among
(i) BankUnited Financial Corporation, a Florida corporation (including any
successors or assigns, the "Depositor"), (ii) The Bank of New York, a banking
corporation organized under the laws of the State of New York, 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"), (iii) The
Bank of New York (Delaware), a banking corporation organized under the laws of
the State of Delaware, as Delaware trustee (the "Delaware Trustee"), (iv) ▇▇▇▇▇
▇▇▇▇▇▇, an individual, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual, each of whose address
is c/o BankUnited Financial Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (each an "Administrative Trustee" and collectively, the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (v) the
several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust, BankUnited
Capital, pursuant to the Delaware Business Trust Act by entering into that
certain Trust Agreement dated as of December 13, 1996 and by the execution and
filing by the Property Trustee and the Delaware Trustee with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on December
13, 1996, attached as Exhibit A;
WHEREAS, the parties hereto entered into that certain Amended and
Restated Trust Agreement, dated as of December 30, 1996 (the "Original Trust
Agreement");
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein in order to INTER ALIA,
authorize the issuance of additional Trust Securities;
Now THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, as hereinafter defined, hereby
amends and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have
the meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein that are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires,
any reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof and
"hereunder" and other words of similar import refer to this
Trust Agreement as a whole and not to any particular article,
Section or other subdivision.
"Accredited Investor" means an accredited investor within the meaning
of Rule 501(a) of Regulation D under the Securities Act.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in such
Person's capacity as Administrative Trustee of the Trust formed and continued
hereunder and not in such Person's individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor Trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security, the rules and procedures of
the Clearing Agency for such Global Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"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
-2-
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 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 Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York 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 Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate Depository Agreement" means one or more of the agreements
among the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and supplemented from
time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
-3-
"Closing Date" means the date specified as the Closing Time as set
forth in the New Purchase Agreement.
"Closing Time" has the meaning specified in the New Purchase Agreement.
"Code " means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" or "Common Securities Certificates"
means one or more certificates evidencing ownership of Common Securities,
substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal corporate trust office of the Property Trustee
located in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal corporate trust office of the Debenture Trustee located
in New York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Bank of New York, a banking corporation
organized under the laws of the State of New York, and any successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's 10
1/4% Junior Subordinated Deferrable Interest Debentures, Series A, issued
pursuant to the Indenture.
"Definitive Preferred Security" means a Preferred Security issued in
certificated, fully registered form (non-global) as provided in Section 5.2, 5.4
or 5.12, substantially in the form set forth in Exhibit D-2.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (Section.) 3801, et seq., as it may be amended from
time to time.
-4-
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1 (a).
"Distribution" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"Distributions" has the meaning specified in Section 4.1(a).
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of
Default; or
(b) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(c) default by the Trust in the payment of
any Redemption Price of any Trust Security when it becomes due
and payable; or
(d) default in the performance, or breach,
in any material respect, of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant or
warranty a default in the performance or breach of which is
dealt with in clause (b) or (c) above) and continuation of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event
with respect to the Property Trustee and the failure by the
Depositor to appoint a successor Property Trustee within 60
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
-5-
"Expense Agreement" means one or more Agreements as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit G, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Preferred Security" means each Preferred Security registered in
the Securities Register in the name of a Clearing Agency or a nominee thereof
and includes Global 144A Preferred Securities.
"Global Rule 144A Preferred Security" has the meaning specified in
Section 5.2.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor, as Guarantor, and The Bank of New York, as Trustee, for the benefit
of the Holders of the Preferred Securities, as amended from time to time.
"Indenture" means the Junior Subordinated Indenture, dated as of
December 30, 1996, between the Depositor and the Debenture Trustee, as Trustee,
as amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"New Purchase Agreement" means the Purchase Agreement, dated as of
March 18, 1997, among the Trust, the Depositor, BankUnited, FSB and the Initial
Purchaser named therein.
"New Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 24, 1997, among the Trust, the Depositor and the
Initial Purchaser defined therein.
-6-
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman,
Chief Executive Officer and President or a Vice President, and by the Treasurer,
an Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 8.15 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officers' Certificates delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing
the Officers' Certificate has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and
scope of the examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(c) a statement that each such officer has
made such examination or investigation as, in such officer's
opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the
opinion of each such officer, such condition or covenant has
been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Preferred Securities" has the meaning specified in Section
2.4.
"Original Trust Agreement" has the meaning specified in the preamble
to this Trust Agreement.
"Other Preferred Securities" means the Preferred Securities sold to
Accredited Investors in reliance on an exemption from the registration
requirements of the Securities Act other than Rule 144A as set forth in Section
3 of the Purchase Agreement or Section 3 of the New Purchase Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled
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 therefore
deposited with the Property Trustee or any
-7-
Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities which have been paid or
in exchange for or in lieu of which other Preferred Securities
have been executed and delivered pursuant to Sections 5.4,
5.5, 5.11 and 5.13; provided, however, that in determining
whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall
be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred
Securities that such Trustee actually knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply
at any time when all of the outstanding Preferred Securities
are owned by the Depositor, one or more of the Trustees or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a beneficial
interest in a Global Preferred Security 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 Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its corporate
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement including the right to receive
Distributions and a Liquidation Distribution as provided herein.
-8-
"Preferred Securities Certificate" or "Preferred Securities
Certificates" means one or more certificates evidencing ownership of Preferred
Securities, substantially in the form attached as Exhibit D-1 or D-2.
"Property Trustee" means the Person identified as the "property
trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore created and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of December
23, 1996, among the Trust, the Depositor, BankUnited, FSB and the Initial
Purchasers named therein.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a like Amount of
Debentures allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 30, 1996, among the Trust, the Depositor and the
Initial Purchasers named therein.
"Regulation D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers, 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 and with
respect to the Delaware Trustee, any officer of the Delaware Trustee customarily
performing functions similar to those performed by any of the above designated
officers, 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.
"Restricted Preferred Securities" means all Preferred Securities
required pursuant to Section 5.5(c) to bear a Restricted Preferred Securities
Legend.
-9-
"Restricted Preferred Securities Legend" means a legend substantially
in the form of a Legend required on Exhibit D-2 to be placed on non-global
Definitive Preferred Securities issued to Accredited Investors.
"Restricted Security Certificate" means a certificate substantially in
the form set forth in Exhibit E.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Preferred Securities" means the Preferred Securities sold to
qualified institutional buyers as defined in Rule 144A as set forth in Section 3
of the Purchase Agreement or Section 3 of the New Purchase Agreement..
"Rule 144A Preferred Securities Legend" means a legend substantially in
the form of the legend required in Exhibit D-1 to be placed upon the Rule 144A
Preferred Securities.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Securities Act Legend" means a Rule 144A Preferred Securities Legend.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities are registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Outstanding Preferred Securities have voted on any matter
provided for in this Trust Agreement, then for the purpose of any such
determination, so long as Definitive Preferred Securities Certificates have not
been issued, the term Security- holders or Holders as used herein shall refer to
the Owners.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern of this Trust Agreement and any such modification, amendment
or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
-10-
"Trust Property" means (a) the 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 Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Unrestricted Securities Certificate" means a certificate substantially
in the form set forth in Exhibit F.
ARTICLE II.
CONTINUATION OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "BankUnited Capital", as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and ▇▇▇ 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 ▇/▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Department, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o BankUnited Financial Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledged receipt in Trust from the Depositor
in connection with the creation of the Trust of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as agreed to in writing from time to time as they arise or
shall, upon written request of any Trustee, promptly reimburse such Trustee for
any such expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
-11-
Section 2.4. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to this Trust
Agreement, executed and delivered the Purchase Agreement and shall execute and
deliver the New Purchase Agreement. Contemporaneously with the execution and
delivery of the Original Trust Agreement, an Administrative Trustee, on behalf
of the Trust, executed in accordance with Section 5.2 and delivered to the
Initial Purchasers named in the Purchase Agreement Preferred Securities
Certificates, registered as set forth in Section 5.2, in an aggregate amount of
50,000 Preferred Securities having an aggregate Liquidation Amount of
$50,000,000, against receipt of such aggregate purchase price of such Preferred
Securities of $50,000,000, which amount the Administrative Trustee promptly
delivered to the Property Trustee (the "First Original Preferred Securities").
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Initial Purchaser named in the New Purchase
Agreement additional Preferred Securities Certificates, registered as set forth
in Section 5.2, in an aggregate amount of 20,000 Preferred Securities having an
aggregate Liquidation Amount of $20,000,000 against receipt of such aggregate
purchase price of such Preferred Securities of $19,700,000, which amount the
Administrative Trustee shall promptly deliver to the Property Trustee (the
"Second Original Preferred Securities") (the First Original Preferred Securities
and the Second Original Preferred Securities being hereinafter collectively
referred to as the "Original Preferred Securities"). The Original Preferred
Securities shall consist of Rule 144A Preferred Securities and Other Preferred
Securities. All of the Preferred Securities issued as described in this Trust
Agreement shall constitute one class of Preferred Securities.
-12-
Section 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of the Original Trust
Agreement, an Administrative Trustee, on behalf of the Trust, executed in
accordance with Section 5.3 and delivered to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
2,000 Common Securities having an aggregate Liquidation Amount of $2,000,000
against payment by the Depositor of such amount, which amount such
Administrative Trustee promptly delivered to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
subscribed to and purchased from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $52,000,000,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, delivered to the Depositor the sum of
$52,000,000 (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5). Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.3 and deliver to the Depositor additional
Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of 800 Common Securities having an aggregate Liquidation Amount
of $800,000 against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor additional Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $20,800,000, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $20,800,000 (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the third sentence of Section 2.4 and (ii) the
third sentence of this Section 2.5). All of the Common Securities issued as
described in this Trust Agreement shall constitute one class of Common
Securities.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to invest in the
Debentures and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all of the rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
13
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs
of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph
(b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following :
(i) As among the Trustees, each
Administrative Trustee shall have the power and
authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale
of the Trust Securities;
(B) to cause the Trust to
enter into, and to execute, deliver and perform on
behalf of the Trust, the Expense Agreement, the
Registration Rights Agreement, the New Registration
Rights Agreement and the Certificate Depository
Agreement and such other agreements as may be
necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in connection
with the Registration Rights Agreement and the New
Registration Rights Agreement in the registration of
the Preferred Securities under the Securities Act, as
amended, and under state securities or blue sky laws,
and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(D) assisting in the
registration or listing of the Preferred Securities
with The Depository Trust Company or upon such other
trading facilities or exchanges as shall be
determined by the Depositor and the registration of
the Preferred Securities under the Exchange Act, as
amended, and the preparation and filing of all
periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices
(other than notices of default) and other information
regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a
Paying Agent, authenticating agent and Securities
Registrar in accordance with this Trust Agreement;
(G) registering transfer of
the Trust Securities in accordance with this Trust
Agreement;
-14-
(H) to the extent provided
in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate
of cancellation with the Secretary of the State of
Delaware;
(I) unless otherwise
determined by the Depositor, the Property Trustee or
the Administrative Trustees, or as otherwise required
by the Delaware Business Trust Act or the Trust
Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of
the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute
pursuant to this Trust Agreement;
(J) assisting in the
designation of the Preferred Securities for trading
in the Private Offering, Resales and Trading through
the Automatic Linkages (PORTAL) system; and
(K) the taking of any action
incidental to the foregoing as the Trustees may from
time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for
the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the
Property Trustee shall have the power, duty and
authority to act on behalf of the Trust with respect
to the following matters:
(A) the establishment of the
Payment Account;
(B) the receipt of the
Debentures;
(C) the collection of
interest, principal (premium, if any) and any other
payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through
the Paying Agent of amounts owed to the
Securityholders in respect to the Trust Securities;
(E) the exercise of all of
the rights, powers and privileges of a holder of the
Debentures;
(F) the sending of notices
of default and other information regarding the Trust
Securities and the Debentures to the Securityholders
in accordance with this Trust Agreement;
(G) the distribution of the
Trust Property in accordance with the terms of this
Trust Agreement;
-15-
(H) to the extent provided
in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the
execution of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of
Default (other than under paragraph (b), (c), (d) or
(e) of the definition of such term if such Event of
Default is by or with respect to the Property
Trustee), the taking of any action incidental to the
foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder); and
(J) except as otherwise
provided in this Section 2.7(a)(ii), the Property
Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative
Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in
effect, the Trust (or the Trustees acting on behalf of the
Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not
(i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided
herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United
States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt or
(v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and
conformed in all respects):
(i) the preparation by the
Trust of an offering memorandum or memoranda,
including any supplements thereto, in relation to the
Preferred Securities and filing by the Trust with the
Commission and the execution on behalf of the Trust
of a registration statement or registration
statements on the appropriate form in relation to the
Preferred Securities, including any amendments
thereto;
-16-
(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 which must be taken
by or on behalf of the Trust, and the advice to the
Trustees of actions they must take on behalf of the
Trust, and the preparation for execution and filing
of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor
deems necessary or advisable in order to comply with
the applicable laws of any such states in connection
with the sale of the Preferred Securities;
(iii) the preparation for
filing by the Trust and execution on behalf of the
Trust of an application to The Depository Trust
Company or any other trading facility or exchange for
registration or listing upon notice of issuance of
any Preferred Securities;
(iv) the preparation for
filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) or 12(g)
of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the
terms of, and the execution and delivery of, the
Purchase Agreement and the New Purchase Agreement
providing for the sale of the Preferred Securities;
and
(vi) the taking of any other
actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Depositor and the Administrative Trustees are authorized
and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be registered under the
1940 Act, or fail to be classified as a grantor trust for
United States federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor
for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative
Trustee determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the
holders of the Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
-17-
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the
Property Trustee established the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have
exclusive control and sole right of withdrawal with respect to
the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this
Trust Agreement. All moneys and other property deposited or
held from time to time in the Payment Account shall be held by
the Property Trustee in the Payment Account for the exclusive
benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments
provided for herein.
(b) The Property Trustee shall deposit in
the Payment Account, promptly upon receipt, all payments of
principal of or interest on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.
(a) The Trust Securities represent undivided
beneficial interests in the Trust Property, and Distributions
(including Additional Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the
Indenture) are made on the Debentures. Accordingly:
(i) Distributions on the Trust
Securities shall be cumulative, and will accumulate
whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall
accrue from December 30, 1996 and, except in the
event (and to the extent) that the Depositor
exercises its right to defer the payment of interest
on the Debentures pursuant to the Indenture, shall be
payable semi-annually in arrears on June 30 and
December 31 of each year, commencing on
-18-
June 30, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a
Business Day (and without any interest or other
payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case
with the same force and effect as if made on such
date (each date on which distributions are payable in
accordance with this Section 4.l(a), a "Distribution
Date").
(ii) Assuming payments of interest
on the Debentures are made when due (and before
giving effect to Additional Amounts, if applicable),
Distributions on the Trust Securities shall be
payable at a rate of 10 1/4% per annum of the
Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of
twelve 30-day months. The amount of Distributions for
any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of
twelve 30-day months. The amount of Distributions
payable for any period shall include the Additional
Amounts, if any.
(iii) Distributions on the Trust
Securities shall be made by the Property Trustee from
the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust
has funds then on hand and available in the Payment
Account for the payment of such Distributions.
(b) Distributions on the Trust
Securities with respect to a Distribution Date shall
be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business
Day prior to such Distribution Date; provided,
however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the
relevant record date shall be the date 15 days prior
to the relevant Distribution Date.
Section 4.2. Redemption.
(a) On any Debenture Redemption Date
and on the stated maturity of the Debentures, the
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:
-19-
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all of the
Outstanding Trust Securities are to be redeemed, the
identification and the total Liquidation Amount of
the particular Trust Securities to be deemed;
(v) that on the Redemption Date the
Redemption Price will become due and Payable upon
each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and
after said date; and
(vi) the place or places where the
Trust Securities are to be surrendered for the
payment of the Redemption Price.
The Trust in issuing the Trust Securities may use "CUSIP" or "private
placement" numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of Redemption and related materials as a convenience to
Securityholders; PROVIDED that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous Redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 10:00 a.m., New York City
time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for
the Preferred Securities funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders
thereof. If the Preferred Securities are no longer in book-entry-only
form, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
register for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such
deposit, all rights of Securityholders holding Trust
-20-
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, and such Securities will
cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities register for the Trust Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption
Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record
date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(a), if less than all of the
Outstanding Trust Securities are to be redeemed on a Redemption Date,
then the aggregate Liquidation Amount of Trust Securities to be
redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among Common Securities and the Preferred Securities. The
particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Preferred Securities not previously called for
redemption, by such method (including, without limitation, by lot) as
the Property Trustee shall deem fair and appropriate and which may
provide for the selection for Redemption of portions (equal to $1,000
or an integral multiple of $1,000 in excess thereof) of the Liquidation
Amount of Preferred Securities of a denomination larger than $1,000,
provided that the Holder of such Preferred Securities shall not hold
less than $100,000 Preferred Securities after the redemption. The
Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions
relating to the Redemption of Preferred Securities shall relate, in the
case of any Preferred Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Securities
that has been or is to be Redeemed.
-21-
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including
Additional Amounts, if applicable) on, and the Redemption
Price of, the Trust Securities, as applicable, shall be made,
subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall
have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on,
or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price the full amount of such Redemption Price
on all Outstanding Preferred Securities, shall have been made,
and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable)
on, or the Redemption Price of, Preferred Securities then due
and payable.
(b) In the case of the occurrence of any
Event of Default resulting from any Debenture Event of
Default, the Holder of Common Securities will be deemed to
have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all of
such Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement
with respect to the Preferred Securities has been so cured,
waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the
Holders of the Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
-22-
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all of such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the
Administrative Trustee shall promptly pay any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
Section 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 (and
Owner with respect to such Holder's Preferred Securities) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.14 of this Trust
Agreement.
ARTICLE V.
TRUST SECURITIES
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 of the Original Trust Agreement and until the issuance
of the Trust Securities pursuant to the Original Trust Agreement, the Depositor
was, and at any time during which no Trust Securities are outstanding, the
Depositor shall be, the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities.
The Preferred Securities shall be issued in minimum denominations of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities shall be issued in denominations of $1,000 Liquidation
Amount and integral multiples thereof. The Trust Securities shall be executed on
behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Trust Securities bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of
-23-
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
or did not hold such offices at the date of delivery of such Trust Securities. A
transferee of a Trust Security shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities in such transferee's
name pursuant to Sections 5.4, 5.5 and 5.13.
Upon their original issuances or any subsequent issuances, Rule 144A
Preferred Securities shall be issued in the form of one or more global Rule 144A
Preferred Securities (the "Global Rule 144A Preferred Securities") registered in
the name of the nominee of DTC for credit to the respective accounts of the
Owners thereof (or such other accounts as they may direct). Upon their original
issuance or any subsequent issuances, Other Preferred Securities shall also be
issued in the form of Global Preferred Securities except in the event that such
Other Preferred Securities are required to be issued to the Accredited Investor
in the form of a Definitive Preferred Security certificate and registered to the
name of the Accredited Investor thereof to comply with state securities or other
laws.
Common Securities Certificate representing the Common Securities shall
be issued to the Depositor in the form of a definitive Common Securities
Certificates.
Section 5.3. Execution and Delivery of Trust Securities.
On or prior to the Closing Date the Administrative Trustees shall have
caused or shall cause Trust Securities consisting of Preferred Securities and
Common Securities, in an aggregate Liquidation Amount as provided in Sections
2.4 and 2.5, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor, signed by its chairman of the board and
president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
Section 5.4. Global Preferred Securities.
(a) Each Global Preferred Security issued
under this Trust Agreement shall be registered in the name of
the Clearing Agency designated by the Depositor for the
related Global Preferred Securities or a nominee thereof and
delivered to such Clearing Agency or a nominee thereof or
custodian therefor.
(b) Notwithstanding any other provision in
this Trust Agreement, no Global Preferred Securities may be
exchanged in whole or in part for Preferred Securities
registered, and no transfer of Global Preferred Securities in
whole or in part may be registered, in the name of any Person
other than the Clearing Agency for such Global Preferred
Securities or a nominee thereof unless (i) the Clearing Agency
advises the Property Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Global Preferred
Securities, and the Property Trustee is unable to locate a
qualified successor, (ii) the Trust at its option advises the
Clearing Agency in writing that it elects to eliminate the
global system through the Clearing Agency, (iii) after the
occurrence of a Debenture Event of Default or (iv) pursuant to
the
-25-
following sentence. All or any portion of a Global
Preferred Security may be exchanged for a Preferred Security
that has a like aggregate principal amount and is not a Global
Preferred Security upon 20 days' prior written request made by
the Clearing Agency or its authorized representative to the
Property Trustee; provided, however, that no Definitive
Preferred Security shall be issued in an amount representing
less than 100 Preferred Securities. Upon the occurrence of any
event specified in clause (i), (ii) or (iii) above, the
Administrative Trustees shall notify the Clearing Agency and
the Clearing Agency shall notify all Owners of beneficial
interests in Global Preferred Securities, the Delaware
Trustee, the Property Trustee and the Administrative Trustees
of the occurrence of such event and of the availability of the
Definitive Preferred Securities to such Owners requesting the
same; provided, however, that no Definitive Preferred
Securities shall be issued in an amount representing less than
$100,000 in aggregate Liquidation Amount of Preferred
Securities. Upon surrender to the Administrative Trustees of
the typewritten Preferred Securities Certificate or
Certificates representing the Global Preferred Securities held
by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them,
shall execute a Definitive Preferred Security in accordance
with the instructions of the Clearing Agency. Neither the
Securities Registrar nor the Trustees shall be liable for any
delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such
instructions. Upon the issuance of the Definitive Preferred
Security, the Trustees shall recognize the Holder of a
Definitive Preferred Security as a Securityholder. Definitive
Preferred Securities shall be printed, lithographed or
engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees or any one of them.
(c) If any Global Preferred Security is to
be exchanged for Definitive Preferred Securities or cancelled
in part, or if Definitive Preferred Securities are to be
exchanged in whole or in part for a Global Preferred Security,
then either (i) such Global Preferred Security shall be so
surrendered for exchange or cancellation as provided in this
Article Five or (ii) the aggregate Liquidation Amount
represented by such Global Preferred Security shall be
reduced, subject to Section 5.2, or increased, by an amount
equal to the Liquidation Amount represented by that portion of
the Global Preferred Security to be so exchanged or cancelled,
or equal to the Liquidation Amount represented by such
Definitive Preferred Security to be so exchanged for
beneficial interests in the Global Preferred Security
represented thereby, as the case may be, by means of an
appropriate adjustment made on the records of the Securities
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 surrender to the
Administrative Trustees or the Securities Registrar of the
Global Preferred Security by the Clearing Agency, accompanied
by registration instructions, the Administrative Trustees, or
any one of them, shall execute the Definitive Preferred
Securities in accordance with the instructions of the Clearing
Agency; provided, however, that no Definitive Preferred
Securities shall be issued in an amount representing less than
$100,000
-25-
in Aggregate Liquidation Amount of Preferred Securities. None
of the Securities Registrar, the Trustees or the
Administrative Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. Upon
the issuance of Definitive Preferred Securities, the Trustees
and Administrative Trustees shall recognize the Holders of the
Definitive Preferred Securities as Securityholders. The
Definitive Preferred Securities shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees or any one of them.
(d) Every Definitive Preferred Security
executed 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 Five or
Article Four or otherwise, shall be executed and delivered in
the form of, and shall be, a Global Preferred Security, unless
such Definitive 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
registered owner of a Global Preferred Security, shall be the
Holder of such Global Preferred Security for all purposes
under this Trust Agreement and the Global Preferred Security,
and Owners with respect to a Global Preferred Security shall
hold such interests pursuant to the Applicable Procedures. The
Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Global Preferred Securities
(including the payment of the Liquidation Amount of and
Distributions on the beneficial interests in Global Preferred
Securities represented thereby and the giving of instructions
or directions to Owners of Global Preferred Securities
represented thereby) as the sole Holder of the Global
Preferred Securities represented thereby and shall have no
obligations to the Owners thereof. Neither the Property
Trustee nor the Securities Registrar shall have any liability
in respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Global Preferred Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities are issued pursuant to Section 5.4(b), the initial Clearing Agency
will make global transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing Agency
Participants.
Section 5.5. Registration of Transfer and Exchange of Preferred Securities.
(a) The Property Trustee shall keep or cause
to be kept, at the office or agency maintained pursuant to
Section 5.9, a register or registers for the purpose of
registering Trust Securities and transfers and exchanges of
Preferred
-26-
Securities (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred
Securities and Common Securities (subject to Section 5.11 in
the case of the Common Securities) and registration of
transfers and exchanges of Preferred Securities as herein
provided. The Bank shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any
Preferred Security at the office or agency maintained pursuant
to Section 5.9, the Administrative Trustees or any one of them
shall execute and the Property Trustee shall deliver, in the
name of the designated transferee or transferees, one or more
new Preferred Securities in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by
such Administrative Trustee or Trustees.
The Securities Registrar shall not be required to
register the transfer of any Preferred Securities that have
been called for redemption and during the period starting 15
days before mailing notice of redemption.
At the option of a Holder, Preferred Securities may
be exchanged for other Preferred Securities in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
to be exchanged at the office or agency maintained pursuant to
Section 5.9.
Every Preferred Security presented or surrendered for
registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to an
Administrative Trustee and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in
writing. Each Preferred Security surrendered for registration
of transfer or exchange shall be cancelled and subsequently
disposed of by an Administrative Trustee in accordance with
such Person's customary practice.
No service charge shall be made for any registration
of transfer or exchange of Preferred Securities, but the
Securities Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred
Securities.
(b) CERTAIN TRANSFERS AND EXCHANGES.
Notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Preferred Securities and of
beneficial interests in Global Preferred Securities of the
kinds specified in this Section 5.5(b) shall be made only in
accordance with this Section 5.5(b).
(i) OTHER PREFERRED SECURITIES TO
OTHER PREFERRED SECURITIES. An Other Preferred Security may be
transferred, in whole or in part, to a Person who takes
delivery in the form of another Other Preferred Security
provided that the Securities Registrar shall have received a
Restricted Security Certificate, satisfactory to the
Securities Registrar and duly executed by the transferor Owner
or his attorney duly authorized in writing.
-27-
(ii) OTHER PREFERRED SECURITIES TO
GLOBAL 144A PREFERRED SECURITIES. If an Owner of an Other
Preferred Security wishes at any time to transfer all or any
portion of such Other Preferred Security to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in a Global 144A Preferred Security, such transfer
may be effected only in accordance with the provisions of this
Clause (b)(ii) and subject to the Applicable Procedures. Upon
receipt by the Property Trustee, as Security Registrar, of (A)
such Restricted Securities Certificate as provided in Section
5.5(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Global
144A Preferred Security in a specified principal amount be
credited to a specified Agent Member's account and (B) a
Restricted Securities Certificate, if the specified account is
to be credited with a beneficial interest in the Global 144A
Preferred Security, in either case satisfactory to the
Securities Registrar and duly executed by such Owner or his
attorney duly authorized in writing, then the Securities
Registrar shall cancel such Other Preferred Securities (and
issue a new Other Preferred Security in respect of any
untransferred portion thereof as provided in Section 5.5(a)
and increase the principal amount of the Global 144A Preferred
Security by the specified principal amount as provided in
Section 5.5(b)(v)).
(iii) GLOBAL RULE 144A PREFERRED
SECURITIES TO OTHER PREFERRED SECURITIES. An Owner of a
beneficial interest in a Global Rule 144A Preferred Security
may transfer such interest to a Person who wishes to acquire
the same in the form of an Other Preferred Security, provided
that the Securities Registrar shall have received a Restricted
Securities Certificate, satisfactory to the Securities
Registrar and duly executed by the transferor Owner or his
attorney duly authorized in writing.
(iv) CERTAIN INITIAL TRANSFERS OF
OTHER PREFERRED SECURITIES. An initial transfer or exchange of
Other Preferred Securities that does not involve any change in
beneficial ownership may be made to an Accredited Investor or
Investors as if such transfer or exchange were not a transfer
or exchange, provided that a written certification is provided
certifying that such exchange or transfer does not involve a
change in beneficial ownership.
(v) LIMITATIONS RELATING TO SIZE OF
BLOCKS. Notwithstanding any other provision of this Trust
Agreement, Preferred Securities may only be transferred or
exchanged in blocks having a Liquidation Amount of not less
than $100,000. Any transfer, exchange or other disposition of
Preferred Securities in contravention of this Section
5.5(b)(v) shall be deemed to be void and of no legal effect
whatsoever, any such transferee shall be deemed not to be the
Holder or Owner of such Preferred Security for any purpose,
including but not limited to the receipt of distributions on
such Preferred Securities, and such transferee shall be deemed
to have no interest whatsoever in such Preferred Securities.
(c) SECURITIES ACT LEGENDS. Global Rule 144A
Preferred Securities and their successor Rule 144A Preferred
Securities shall bear a Rule 144A Preferred Securities Legend.
Other Preferred Securities that are registered by a Global
-28-
Preferred Security will also have a Rule 144A Preferred
Security legend. Other Preferred Securities that are not
registered by a Global Preferred Security and their successor
Other Preferred Securities shall bear Restricted Preferred
Securities Legend, subject to the following:
(i) subject to the following Clauses
of this Section 5.5(c), Preferred Securities that are
exchanged, upon transfer or otherwise, for interests in a
Global Preferred Security or any portion thereof shall bear
the Securities Act Legend borne by such Global Preferred
Security while represented thereby;
(ii) any Preferred Securities which
are sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act (including the
registration statement contemplated by the Registration Rights
Agreement and the New Registration Rights Agreement), together
with their successor Preferred Securities, shall not be
required to bear any legend; the Depositor or an
Administrative Trustee shall inform the Property Trustee in
writing of the effective date of any such registration
statement registering Preferred Securities under the
Securities Act and shall notify the Property Trustee at any
time when prospectuses may not be delivered with respect to
Preferred Securities to be sold pursuant to such registration
statement. The Property Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement;
(iii) after December 30, 1999 or at
the earliest date permitted as computed in accordance with
paragraph (k) of Rule 144 under the Securities Act, new
Preferred Securities (other than a Global Preferred Security)
that do not bear a Restricted Preferred Securities Act Legend
shall be issued in exchange for or in lieu of Other Preferred
Securities or any portions thereof if the Property Trustee has
received an Unrestricted Security Certificate, in the form of
Exhibit F hereto, duly executed by the Holder or Owner of such
Other Preferred Securities or his attorney duly authorized in
writing, and after such date and receipt of such certificate,
the Administrative Trustees shall execute and deliver such new
Preferred Securities in exchange for or in lieu of such Other
Preferred Securities as provided in this Article Five,
(iv) at any time after the Preferred
Securities may be freely transferred without registration
under the Securities Act or without being subject to transfer
restrictions pursuant to the Securities Act, new Preferred
Securities that do not bear a legend may be issued in exchange
for or in lieu of a Preferred Security (other than a Global
Preferred Security) or any portion thereof which bears such a
legend if the Security Registrar has received an Unrestricted
Securities Certificate in the form of Exhibit F hereto,
satisfactory to the Security Registrar and duly executed by
the Holder of such legended Preferred Securities or his
attorney duly authorized in writing;
(v) new Preferred Securities that do
not bear a legend may be issued in exchange for or in lieu of
Preferred Securities (other than Global
-29-
Preferred Securities) or any portion thereof that bear such a
legend if, in the Property Trustee's judgment, placing such a
legend upon such new Preferred Securities is not necessary to
ensure compliance with the registration requirements of the
Securities Act; and
(vi) notwithstanding the foregoing
provisions of this Section 5.5(c), a successor Preferred
Security that does not bear a particular form shall not be
required to bear such legend unless the Property Trustee has
reasonable cause to believe that such successor Preferred
Security is a "restricted security" within the meaning of Rule
144, in which case the Property Trustee, at the direction of
the Administrative Trustees, shall authenticate and deliver a
new Preferred Security bearing a Restricted Preferred
Securities Legend in exchange for such successor Preferred
Security as provided in this Article Five.
(d) The Property Trustee shall not be
required to insure or verify compliance with securities laws,
including the Securities Act, Exchange Act and 1940 Act, in
connection with transfers and exchanges of Preferred
Securities Certificates.
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 Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.7. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
-30-
Section 5.8. Access to List of Securityholders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
Section 5.9. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate The Bank of New York, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Attn: Corporate Trust Trustee Administration,
as its principal corporate trust office for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.
Section 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days ' written notice to the Administrative Trustees, and
the Depositor. In the event that the Property Trustee shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Administrative Trustees shall appoint a successor that is
accountable to the Depositor to act as Paying Agent (which shall be a bank or
trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in Trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Trust Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
-31-
Section 5.11. Ownership of Common Securities by Depositor.
On or prior to the Closing Date the Depositor shall have acquired or
shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another Person,
or any conveyance, transfer or lease by the Depositor of its properties and
assets substantially as an entirety to any Person, pursuant to Section 8.1 of
the Indenture, any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities and Temporary Preferred
Securities.
(a) ISSUANCE OF DEFINITIVE PREFERRED
SECURITIES IN LIEU OF GLOBAL PREFERRED SECURITIES. If (a) the
Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Preferred Security, and
the Depositor is unable to locate a qualified successor, (b)
the Depositor at its option advises the Trustees in writing
that it elects to terminate the book-entry system through the
Clearing Agency or (c) after the occurrence of a Debenture
Event of Default, Owners of a beneficial interest in a
Preferred Security representing beneficial interests
aggregating at least a majority of the Liquidation Amount
advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing
Agency is no longer in the best interest of the Owners of
Preferred Securities, then the Administrative Trustee shall
notify the Clearing Agency and the Clearing Agency shall
notify all Owners of a Preferred Security and the other
Trustees of the occupance of any such event and of the
availability of a Definitive Preferred Security to Owners of
such class requesting the same.
(b) TEMPORARY SECURITIES. Pending the
preparation of permanent Preferred Securities (the "Permanent
Preferred Securities"), an Administrative Trustee may cause to
be executed and delivered on behalf of the Trust temporary
Preferred Securities (the "Temporary Preferred Securities"),
which Temporary Preferred Securities are printed,
lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of
the Permanent Preferred Securities in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers
-32-
executing such Temporary Preferred Securities may determine,
as evidenced by their execution thereof.
If Temporary Preferred Securities are issued, an Administrative Trustee
will cause Definitive Preferred Securities to be prepared without unreasonable
delay. After the preparation of Permanent Preferred Securities, the Temporary
Preferred Securities shall be exchangeable for Permanent Preferred Securities
upon surrender of the Temporary Preferred Securities at any office or agency of
the Depositor designated pursuant to Section 5.9, without charge to the Holder.
Upon surrender for cancellation of any one or more Temporary Preferred
Securities, the Depositor shall execute and an Administrative Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
Permanent Preferred Securities of authorized denominations. Until so exchanged
the Temporary Preferred Securities shall in all respects be entitled to the same
benefits as Permanent Preferred Securities.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is
vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.9, and the Securityholders
shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no
right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust. The Holders
of the Trust Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities
remain Outstanding, if, upon a Debenture Event of Default, the
Debenture Trustee fails or the Holders of not less than 25% in
principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due
and payable, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall have such
right by a notice in writing to the Depositor and the
Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures
shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
-33-
(i) the Depositor has paid or deposited with
the Debenture Trustee a sum sufficient to pay
(A) all overdue
installments of interest (including any Additional
Interest (as defined in the Indenture) on all of the
Debentures,
(B) the principal of (and
premium, if any, on) any Debentures which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate borne
by the Debentures, and
(C) all sums paid or
advanced by the Debenture Trustee under the Indenture
and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel;
and
(ii) all Events of Default with respect to
the Debentures, other than the nonpayment of the principal of
the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section
5.13 of the Indenture.
The Holders of a majority in aggregate outstanding principal amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities (all or part of which may be represented by Global
Preferred Securities Certificates), a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designed 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 view of the
required percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
-34-
(c) For so long as any Preferred Securities
remain Outstanding, to the fullest extent permitted by law and
subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in
5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action").
Except as set forth in Section 5.14(b) and this Section
5.14(c), the Holders of Preferred Securities shall have no
right to exercise directly any right or remedy available to
the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in
Sections 5.14, 8.10 and 10.2 and in the Indenture and as
otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise
control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or confined in the terms of the
Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Debentures are held by
the Property Trustee, the Trustees shall not (i) direct the
time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any
Trust or power conferred on the Debenture Trustee with respect
to such Debentures, (ii) waive any past default which is
waivable under Section 5.13 of the Indenture, (iii) exercise
any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the
Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that
where a consent under the Indenture would require the consent
of each Holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior
written consent of each Holder of Preferred Securities. The
Trustees shall not revoke any action previously authorized or
proved by a vote of the Holders of Preferred Securities,
except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of
the Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders
of the Preferred Securities, prior to taking any of the
foregoing actions, the Administrative Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel
experienced in such
-35-
matters to the effect that such action shall not cause the
Trust to fail to be classified as a grantor trust for United
States federal income tax purposes.
(c) If any proposed amendment to the Trust
Agreement provides for, or the Trustees otherwise propose to
effect, (i) any action that would adversely affect in any
material respect the powers, preferences or special rights of
the Preferred Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to
the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of
the Holders of at least a majority in Liquidation Amount of
the Outstanding Preferred Securities. Notwithstanding any
other provision of this Trust Agreement, no amendment to this
Trust Agreement may be made if, as a result of such amendment,
it would cause the Trust to fail to be classified as a grantor
trust for United States federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Preferred Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
-36-
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding not less than a majority of
all Outstanding Trust Securities (based upon their Liquidation Amount) entitled
to vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective
-37-
when such instrument or instruments are delivered to an Administrative Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
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 or other officer authorized by law total acknowledgments
of deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
-38-
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a state banking
association, duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate
power, authority and legal right to execute, deliver and
perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware
banking corporation duly organized, validly existing and in
good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate
power, authority and legal right to execute, deliver and
perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly
authorized, executed and delivered by the Property Trustee and
the Delaware Trustee and constitutes the valid and legally
binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance
of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the
Delaware Trustee and such execution, delivery and performance
will not (i) violate the Charter or By-laws of the Property
Trustee or the Delaware Trustee, (ii) violate any provision
of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any
Lien on any properties included in the Trust Property pursuant
to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which
the Property Trustee or the Delaware Trustee is a party or by
which it is bound or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, Trust or general
powers of the Property
-39-
Trustee or the Delaware Trustee (as appropriate in context)
or any order, judgment or decree applicable to the Property
Trustee or the Delaware Trustee;
(g) neither the authorization, execution or
delivery by the Property Trustee or the Delaware Trustee of
this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee or the Delaware Trustee
(as appropriate in context) contemplated herein or therein
requires the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing federal law governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the
case may be, under the laws of the United States or the State
of Delaware; and
(h) there are no proceedings pending or, to
the best of each of the Property Trustee's and the Delaware
Trustee's knowledge, threatened against or affecting the
Property Trustee or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question
the right, power and authority of the Property Trustee or the
Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Trust
Agreement.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued
or outstanding at the Closing Date on behalf of the Trust have
been duly authorized and have or will have been duly and
validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance
with the requirements of, the Original Trust Agreement and
this Trust Agreement and the Securityholders 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 Trust (or the Trustees on
behalf of the Trust) under the laws of the State of Delaware
or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust
Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the
Trustees shall be as provided by this Trust Agreement and, in
the case of the Property Trustee, by the Trust
-40-
Indenture Act. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require the Trustees to expend or
risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder,
or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustees shall be subject to
the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release an Administrative
Trustee from liability for its own gross negligent action, its
own gross negligent failure to act, or its own willful
misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be
liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to
replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property
Trustee or a Paying Agent in respect of the Trust Securities
shall be made only from the revenue and proceeds from the
Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments
in accordance with the terms hereof. Each Securityholder, by
its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to
the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it
for any amount distributable in respect of any Trust Security
or for any other liability in respect of any Trust Security.
This Section 8.l(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement
or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement
shall be construed to relieve the Property Trustee from
liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee
shall not be liable for any error of judgment made in
good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent
facts;
(ii) the Property Trustee
shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not
less than a majority in Liquidation Amount of the
Trust Securities relating to the time, method and
place of
-41-
conducting any proceeding for any remedy
available to the Property Trustee, or exercising any
Trust or power conferred upon the Property Trustee
under this Trust Agreement;
(iii) the Property
Trustee's sole duty with respect to the custody, safe
keeping and physical presentation of the Debentures
and the Payment Account shall be to deal with such
Property in a similar manner as the Property Trustee
deals with similar property for its own account,
subject the protections and limitations on liability
afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee
shall not be liable for any interest on any money
received by it except as it may otherwise agree in
writing with the Depositor; and money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account maintained by the Property Trustee pursuant
to Section 3.1 and except to the extent otherwise
required by law; and
(v) the Property Trustee
shall not be responsible for monitoring the
compliance by the Administrative Trustees or the
Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be
liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section 8.2. Certain Notices.
Within ninety days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within ninety days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such exercise to
the Securityholders and the Property Trustee, unless such exercise shall have
been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall
be protected in acting or refraining from acting in good faith
upon any resolution, Opinion of Counsel, certificate written
representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
-42-
or other paper or document believed by it to be genuine and
to have been signed or presented by the property party or
parties;
(b) if (i) in performing its duties under
this Trust Agreement the Property Trustee is required to
decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the
Property Trustee finds the same ambiguous or inconsistent with
any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms
of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee
does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice
(which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or
the Administrative Trustees contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(d) whenever in the administration of this
Trust Agreement, the Property Trustee shall deem it desirable
that a matter be established before undertaking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation statement
or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with
counsel of its selection (which counsel may be counsel to the
Depositor or any of its Affiliates and may include any of its
employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon and in accordance with such advice, such
counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property
Trustee shall have
-43-
the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound
to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by one
or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of
the Trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys,
provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection
of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the
Trust Securities which instructions may be given only by the
Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received and (iii) shall be protected in
acting in accordance with such instructions; and shall not be
under any obligation to take any action that is discretionary
under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or act's or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
-44-
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express Trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee and (iv) any employee or agent
of the Trust or its Affiliates, (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination
of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement,
except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to
such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement or the earlier resignations or removal of any Trustee.
-45-
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obliged to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, Trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000. If
any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity with its principal place
of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the
-46-
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-Trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate Trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
-47-
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11. Subject to the
immediately preceding sentence, the Relevant Trustee may resign at any time by
giving written notice thereof to the Securityholders.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall
-48-
comply with the applicable requirements of Section 8.11. If an Administrative
Trustee shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder by Act of the Common Securityholder
delivered to the Administrative Trustee shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of notice of resignation or removal, the Relevant Trustee
may petition, at the expense of the Trust, any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall
-49-
execute and deliver an amendment hereto wherein each successor Relevant Trustee
shall accept such appointment and which (a) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the Trust
by more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-Trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, Trusts and duties
of the retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any 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 such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents
-50-
as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same.
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 8.14. Reports by Property Trustee.
(a) Not later than 60 days after May 15, of each year
commencing with May 15, 1997, the Property Trustee shall, if required
by the Trust Indenture Act, transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report
dated as of the immediately preceding May 15 with respect to:
(i) its eligibility under Section 8.7 or, in
lieu thereof, if to the best of its knowledge it has continued
to be eligible under said Section, a written statement to such
effect;
(ii) a statement that the Property Trustee
has complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the case of
the initial report, the period since the Closing Date) ending
with such May 15 or, if the Property Trustee has not complied
in any material respect with such obligations, a description
of such noncompliance; and
(iii) any change in the property and funds
in its possession as Property Trustee since the date of its
last report and any action taken by the Property Trustee in
the performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
-51-
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national stock exchange, the Nasdaq National Market or such other
interdealer quotation system or self-regulatory organization upon which
the Trust Securities are listed or traded, with the Commission and with
the Depositor. The Depositor will promptly notify the Property Trustee
when the Preferred Securities are listed on any securities exchange.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. Delivery of such reports, information and documents to the Property Trustee
is for informational purposes only and the Property Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Trust's
compliance with any of its covenants hereunder (as to which the Property Trustee
is entitled to rely exclusively on Officers' Certificates).
Section 8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may
increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filed with a
Trustee appointed in accordance with Section 8.10.
(c) A Trustee's death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance
with Section 8.10, the Administrative Trustees in office, regardless of
their number (and notwithstanding any other provision of this
Agreement), shall have all the
-52-
powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Trust
Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.7(a), including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing
of such things and the execution of such instruments either in the name
of the Trust or the names of the Administrative Trustees or otherwise
as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement, as set forth herein.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2052 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the
Depositor at any time to terminate the Trust and distribute Debentures
to Securityholders in exchange for the Preferred Securities (which
direction is optional and wholly within the discretion of the
Depositor);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
-53-
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs prior to the Expiration Date, the Trust
shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to
each Securityholder a Like Amount of Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the
Liquidation Date, the Trust Securities will no longer be
deemed to be Outstanding and any Trust Securities Certificates
not surrendered for exchange will be deemed to represent a
Like Amount of Debentures;
(iii) provide such information with respect
to the procedures by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section 9.4(d)
applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem
appropriate; and
(iv) state the CUSIP number.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures
to Securityholders, the Property Trustee shall establish a record date
for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution
of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates
-54-
representing a Like Amount of Debentures will be issued to Holders of
Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its reasonable best efforts to have the Debentures listed on the New York
Stock Exchange or on such other exchange, interdealer quotation system or
self-regulatory organization as the Preferred Securities are then listed, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered
by a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated,
and the Trust shall be dissolved, wound-up or terminated by the
Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive
out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or
termination, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts). The Holder of the Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution, winding-up
or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities shall have
priority over the Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Article IX. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a Trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so
-55-
long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the Holder of the Debentures, (iii) the Successor Securities
are listed or traded, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor owns all of the common securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee, the Administrative Trustees and the Depositor,
without the consent of any
-56-
Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement or (ii)
to modify, eliminate or add to any provisions of this Trust Agreement
to such extent as shall be necessary to ensure that the Trust will be
classified for United States federal income tax purposes as a grantor
Trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an investment
company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material
respect the interests of any Securityholder, and any amendments of this
Trust Agreement pursuant to this Section 10.2(a) shall become effective
when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and
the Depositor with (i) the consent of Trust Securityholders
representing not less than a majority (based upon Liquidation Amounts)
of the Trust Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust
for United States federal income tax purposes or the Trust's exemption
from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section
6.3 or 6.6 hereof), this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust Securities
or otherwise adversely affect the amount of any Distribution required
to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section
6.3 or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be
amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an investment company under
the 1940 Act or fail or cease to be classified as a grantor trust for
United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation
on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
-57-
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement
which affects its own rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to receive an Opinion
of Counsel and an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.l(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successor.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the
-58-
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to BankUnited Financial Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇. Any
notice to Preferred Securityholders shall also be given to such owners as have,
within two years preceding the giving of such notice, filed their names and
addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The Bank
of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Trustee Administration; (b) with respect to the Delaware
Trustee, to The Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (c) with respect to the Administrative Trustees, to
them at the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of BankUnited Capital". Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, 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 Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such
provisions.
-59-
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be
deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of
the Trust.
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 SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL OF THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
-60-
BANK UNITED FINANCIAL CORPORATION
as Depositor
By:_______________________________________
Name:_____________________________________
Title:____________________________________
THE BANK OF NEW YORK
as Property Trustee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
By:______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: AS ADMINISTRATIVE TRUSTEE
--------------------------------
By:______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: AS ADMINISTRATIVE TRUSTEE
--------------------------------
-61-
EXHIBIT A
CERTIFICATE OF TRUST
OF
BankUnited Capital
THIS CERTIFICATE OF TRUST OF BANKUNITED CAPITAL (the "Trust"), dated
December 13, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business Trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
BankUnited Capital.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AS TRUSTEE
__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, AS TRUSTEE
__________________________________
A-1
[INSERT EXHIBIT B (LETTER OF REPRESENTATION) HERE]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 (_____)
CUSIP NO.
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BANKUNITED CAPITAL
TRUST COMMON SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
BankUnited Capital, a statutory business Trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that BankUnited
Financial Corporation (the "Holder") is the registered owner of () common
securities of the Trust, representing beneficial interests of the Trust and
designated the Trust Common Securities, Series A (liquidation amount $1,000 per
Common Security) (the "Common Securities"). Except as provided in Section 5.11
of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of March 24, 1997, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
By receipt and acceptance of this certificate, the Holder agrees to be
bound by the Trust Agreement and is entitled to the benefits thereunder.
C-1
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 24th day of March, 1997.
BANKUNITED CAPITAL
BY:_______________________________
Name:_____________________________
Title: ADMINISTRATIVE TRUSTEE
C-2
EXHIBIT D-1
GLOBAL RULE 144A PREFERRED SECURITY
The Preferred Securities evidenced hereby and any Debentures issuable
in connection therewith have not been registered under the U.S. Securities Act
of 1933, as amended (the "Securities Act") and may not be offered, sold, pledged
or otherwise transferred except (A)(i) to a person who the Seller reasonably
believes is a "Qualified Institutional Buyer" within the meaning of Rule 144A
under the Securities Act acquiring the Preferred Securities for its own account
or for the account of a Qualified Institutional Buyer in a transaction meeting
the requirements of Rule 144A, (ii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available) or (iii)
pursuant to an effective registration statement under the Securities Act, and
(B) in accordance with all applicable securities laws of the states of the
United States and other jurisdictions.
This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇) to
BankUnited Capital or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
D-1-1
Certificate Number Number of Preferred Securities
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BANKUNITED CAPITAL
10 1/4% TRUST PREFERRED SECURITIES
SERIES A
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
BankUnited Capital, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of ( ) preferred securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the BankUnited Capital 10 1/4% Trust Preferred Securities, Series A
(liquidation amount $1,000 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 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 Trust dated
as of March 24, 1997, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement, as amended, entered into by BankUnited Financial Corporation, a
Florida corporation, and The Bank of New York, as guarantee trustee, dated as of
March 24, 1997 (the "Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Trust Agreement and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-12
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of March 24, 1997.
BANKUNITED CAPITAL
BY:_________________________________
Name:_______________________________
Title: ADMINISTRATIVE TRUSTEE
D-13
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_____________________
Signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities 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 l7Ad-15.
D-14
EXHIBIT D-2
The Preferred Securities evidenced hereby and any Debentures issuable
in connection therewith have not been registered under the U.S. Securities Act
of 1933, as amended (the "Securities Act") and may not be offered, sold, pledged
or otherwise transferred except (A)(i) to a person who the Seller reasonably
believes is a "Qualified Institutional Buyer" within the meaning of Rule 144A
under the Securities Act acquiring the Preferred Securities for its own account
or for the account of a Qualified Institutional Buyer in a transaction meeting
the requirements of Rule 144A, (ii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available) or (iii)
pursuant to an effective registration statement under the Securities Act, and
(B) in accordance with all applicable securities laws of the states of the
United States and other jurisdictions.
D-2-1
OTHER PREFERRED SECURITY
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BANKUNITED CAPITAL
10 1/4% TRUST PREFERRED SECURITIES
SERIES A
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
BankUnited Capital, a statutory business Trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that [ ] (the "Holder")
is the registered owner of ( ) preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and designated the
BankUnited Capital 10 1/4% Trust Preferred Securities, Series A (liquidation
amount $1,000 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 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, Amended and Restated the Trust Agreement of the Trust dated
as of March 24, 1997, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement, as amended, entered into by BankUnited Financial Corporation, a
Florida corporation, as guarantor and The Bank of New York, as guarantee
trustee, dated as of March 24, 1997 (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-2-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 24th day of March, 1997
BANKUNITED CAPITAL
BY:___________________________
Name:_________________________
Title: ADMINISTRATIVE TRUSTEE
D-2-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_____________________
Signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities 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 l7Ad-15.
D-2-4
EXHIBIT E
FORM OF RESTRICTED SECURITIES CERTIFICATE
SECURITIES CERTIFICATE
(FOR TRANSFERS PURSUANT TO Section 5.5 OF THE TRUST AGREEMENT)
The Bank of New York,
as Securities Registrar
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: 10 1/4% TRUST PREFERRED SECURITIES, SERIES A, OF BANKUNITED
CAPITAL (THE "TRUST") (THE "PREFERRED SECURITIES")
Reference is made to the Amended and Restated Trust Agreement, dated as
of March 24, 1997 (as amended from time to time, the "Trust Agreement"), entered
among BankUnited Financial Corporation, as Depositor (the "Depositor"), The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust. Terms used
herein and defined in the Trust Agreement or in Rule 144A or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to $_______ aggregate Liquidation Amount of
Preferred Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Preferred Security, they
are held through the Clearing Agency or a Clearing Agency Participant in the
name of the Undersigned, as or on
E-1
behalf of the Owner. If the Specified Securities are not represented by a Global
Preferred Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Rule 144A
Preferred Security or in the form of Definitive Preferred Securities. In
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as:
(1) RULE 144A TRANSFERS. If the transfer is being
effected in accordance with Rule 144A:
(A) the Specified Securities are being
transferred to a person that the Owner and any person acting
on its behalf reasonably believe is a "qualified institutional
buyer" within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its
behalf have taken reasonable steps to ensure that the
Transferee is aware that the Owner may be relying on Rule 144A
in connection with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a
holding period of at least two years (or such shorter period
as computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from
the Trust or the Depositor or from an affiliate of the Trust
or the Depositor, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a
holding period of at least three years (or such shorter period
as computed in accordance with paragraph (k) of Rule 144) has
elapsed since the Specified Securities were last acquired from
the Trust or the Depositor or from an affiliate of the Trust
or the Depositor, whichever is later, and the Owner is not,
and during the preceding three months has not been, an
affiliate of the Trust or the Depositor.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trust and the Initial Purchasers.
E-2
Dated:_______________
____________________________________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
E-3
EXHIBIT F
FORM OF UNRESTRICTED SECURITIES CERTIFICATE
UNRESTRICTED SECURITIES CERTIFICATE
(FOR REMOVAL OF SECURITIES ACT LEGENDS PURSUANT TO Section 5.5(C) OF THE TRUST
AGREEMENT)
The Bank of New York,
as Securities Registrar
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: 10 1/4% TRUST PREFERRED SECURITIES, SERIES A, OF BANKUNITED
CAPITAL (THE "TRUST") (THE "PREFERRED SECURITIES")
Reference is made to the Amended and Restated Trust Agreement, dated as
of March 24, 1997 (the "Trust Agreement"), entered among BankUnited Financial
Corporation, as Depositor (the "Depositor"), The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, the
Administrative Trustees named therein and the holders from time to time of
undivided beneficial interests in the assets of the Trust. Terms used herein and
defined in the Trust Agreement or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to $_______ aggregate Liquidation Amount of
Preferred Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Securities Certificate,
they are held through the Clearing Agency or a Clearing Agency Participant in
the name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Preferred Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
F-1
The Owner has requested that the Specified Securities be exchanged for
Preferred Securities bearing no Restricted Preferred Securities Legend pursuant
to Section 5.4(c) of the Trust Agreement. In connection with such exchange, the
Owner hereby certifies that the exchange is occurring after a holding period of
at least three years (or such shorter period as computed in accordance with
paragraph (k) of Rule 144) has elapsed since the Specified Securities were last
acquired from the Trust, the Depositor or from an affiliate of the Trust or the
Depositor, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Trust or the Depositor. The Owner
also acknowledges that any future transfers of the Specified Securities must
comply with all applicable securities laws of the states of the United States
and other jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
Dated:_______________
____________________________________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
F-2
EXHIBIT G
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT, dated as of December 30, 1996, between BankUnited Financial
Corporation, a Florida corporation (the "Corporation") having its principal
office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and BankUnited
Capital, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities, Series A
(the "Common Securities") to and receive debentures from the Corporation and to
issue and sell 10 1/4% Trust Preferred Securities, Series A (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Trust Agreement of the Trust, dated as of December 30,
1996, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Corporation will directly or indirectly own all of the
Common Securities of the Trust and will issue the debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Corporation hereby agrees shall benefit
the Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
Trust hereby agree as follows:
ARTICLE I
Section 1.1. Guarantee by the Corporation.
Subject to the terms and conditions hereof, the Corporation hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof
G-1
by the Corporation and The Bank of New York, as guarantee trustee or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.3. Waiver of Notice.
The Corporation hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and the Corporation
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of the Corporation
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happening of any of, the
foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against the
Corporation and the Corporation waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against the Corporation.
Section 1.6. Subrogation.
The Corporation shall be subrogated to all (if any) rights of the Trust
in respect of any amounts paid to the Beneficiaries by the Corporation under
this Agreement; provided, however, that the Corporation shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
G-2
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Corporation and shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains arty Beneficiary or any Preferred Securities
are outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail) or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed:
BankUnited Capital
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
BankUnited Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
Section 2.4. Choice of Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
THIS AGREEMENT is executed as of the day and year first above written.
BANKUNITED FINANCIAL CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
G-3
BANKUNITED CAPITAL
By:______________________________
Name:____________________________
Title:___________________________
G-4