EXHIBIT 4.14
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AMENDED AND RESTATED
TRUST AGREEMENT
of
ABN AMRO CAPITAL FUNDING TRUST [___]
Dated as of ______, _____
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.01. Definitions.....................................................1
ARTICLE 2
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application...............................11
Section 2.02. Lists of Holders of Trust Securities...........................12
Section 2.03. Reports by the Property Trustee................................12
Section 2.04. Periodic Reports to Property Trustee...........................12
Section 2.05. Evidence of Compliance with Conditions Precedent...............12
Section 2.06. Trust Enforcement Events; Waiver...............................12
Section 2.07. Trust Enforcement Event; Notice................................14
ARTICLE 3
ORGANIZATION
Section 3.01. Name...........................................................15
Section 3.02. Office.........................................................15
Section 3.03. Purpose........................................................15
Section 3.04. Authority......................................................15
Section 3.05. Title to Property of the Trust.................................15
Section 3.06. Powers and Duties of the Regular Trustees......................16
Section 3.07. Prohibition of Actions by the Trust and the Trustees...........18
Section 3.08. Powers and Duties of the Property Trustee......................19
Section 3.09. Certain Duties and Responsibilities of the Property Trustee....21
Section 3.10. Certain Rights of Property Trustee.............................23
Section 3.11. Delaware Trustee...............................................26
Section 3.12. Execution of Documents.........................................26
Section 3.13. Not Responsible for Recitals or Issuance of Trust Securities...26
Section 3.14. Duration of Trust..............................................27
Section 3.15. Mergers........................................................27
ARTICLE 4
GUARANTOR
Section 4.01. Responsibilities of the Guarantor..............................29
Section 4.02. Indemnification and Expenses of the Trustee....................29
Section 4.03. Covenants of the Guarantor.....................................29
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.01. [Trust Common Securities Owner]'s Purchase of Trust
Common Securities..............................................32
ARTICLE 6
TRUSTEES
Section 6.01. Number of Trustees.............................................32
Section 6.02. Delaware Trustee...............................................32
Section 6.03. Property Trustee; Eligibility..................................32
Section 6.04. Qualifications of Regular Trustees and Delaware Trustee
Generally......................................................33
Section 6.05. Regular Trustees...............................................33
Section 6.06. Delaware Trustee...............................................34
Section 6.07. Appointment, Removal and Resignation of Trustees...............34
Section 6.08. Vacancies among Trustees.......................................35
Section 6.09. Effect of Vacancies............................................36
Section 6.10. Meetings.......................................................36
Section 6.11. Delegation of Power............................................36
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....37
ARTICLE 7
DIVIDENDS
Section 7.01. Dividends......................................................37
ARTICLE 8
ISSUANCE OF TRUST SECURITIES
Section 8.01. Designation and General Provisions Regarding Trust Securities..38
Section 8.02. Subordination of Trust Common Securities.......................40
Section 8.03. Redemption of Trust Securities.................................41
Section 8.04. Redemption Procedures..........................................42
Section 8.05. Voting Rights of Trust Preferred Securities....................43
Section 8.06. Voting Rights Of Trust Common Securities.......................46
Section 8.07. Paying Agent...................................................47
Section 8.08. Acceptance of Guarantees and Agreements........................47
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ARTICLE 9
TERMINATION AND LIQUIDATION OF THE TRUST
Section 9.01. Dissolution of Trust...........................................48
Section 9.02. Liquidation Distribution upon Termination and Dissolution
of the Trust...................................................49
ARTICLE 10
TRANSFER OF INTERESTS
Section 10.01. Transfer of Trust Securities..................................49
Section 10.02. Transfer of Certificates......................................49
Section 10.03. Deemed Security Holders.......................................50
Section 10.04. Book-entry Interests..........................................50
Section 10.05. Notices to Clearing Agency....................................51
Section 10.06. Appointment of Successor Clearing Agency......................51
Section 10.07. Definitive Trust Preferred Security Certificates..............51
Section 10.08. Mutilated, Destroyed, Lost or Stolen Certificates.............52
ARTICLE 11
LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES,
TRUSTEES OR OTHERS
Section 11.01. Liability.....................................................52
Section 11.02. Exculpation...................................................53
Section 11.03. Fiduciary Duty................................................53
Section 11.04. Indemnification...............................................54
Section 11.05. Outside Businesses............................................58
ARTICLE 12
ACCOUNTING
Section 12.01. Fiscal Year...................................................58
Section 12.02. Certain Accounting Matters....................................58
Section 12.03. Banking.......................................................59
Section 12.04. Withholding; Additional Amounts...............................59
ARTICLE 13
AMENDMENTS AND MEETINGS
Section 13.01. Amendments....................................................60
Section 13.02. Meetings of the Holders of Trust Securities; Action
by Written Consent............................................62
ARTICLE 14
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 14.01. Representations and Warranties of Property Trustee............64
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Section 14.02. Representations and Warranties of Delaware Trustee............64
ARTICLE 15
MISCELLANEOUS
Section 15.01. Notices.......................................................65
Section 15.02. Governing Law.................................................66
Section 15.03. Intention of the Parties......................................66
Section 15.04. Headings......................................................66
Section 15.05. Successors and Assigns........................................66
Section 15.06. Partial Enforceability........................................67
Section 15.07. Counterparts..................................................67
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CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended
Section of
Trust
Agreement
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310(a)............................................. 6.03
310(b)............................................. 6.03(c)
310(c)............................................. 2.02(b)
311(a)............................................. 2.02(b)
311(b)............................................. Inapplicable
311(c)............................................. Inapplicable
312(a)............................................. 2.02
312(b)............................................. 2.02(b)
313................................................ 2.03, 12.02(b)
314(a)............................................. 2.04
314(b)............................................. Inapplicable
314(c)............................................. 2.05
314(d)............................................. Inapplicable
314(f)............................................. Inapplicable
315(a)............................................. 3.09(b)
315(b)............................................. 2.07
315(c)............................................. 3.09
315(d)............................................. 3.09
316(a)............................................. 2.06, 8.05,
8.06
316(c)............................................. 3.06(e)
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(1) This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms or
provisions.
v
AMENDED AND RESTATED
TRUST AGREEMENT
OF
ABN AMRO CAPITAL FUNDING TRUST [ ]
[DATE]
AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement") dated and
effective as of [DATE], by the Trustees (as defined herein), the Sponsor (as
defined herein), the Guarantor (as defined herein), and the Holders (as defined
herein), from time to time, of undivided beneficial interests in the Trust (as
defined herein) to be issued pursuant to this Trust Agreement;
WHEREAS, certain of the Trustees and the Sponsor established ABN AMRO
CAPITAL FUNDING TRUST [ ] (the "Trust"), a trust under the Statutory Trust Act
(as defined herein) pursuant to a Trust Agreement dated as of April 1, 2003 (the
"Original Trust Agreement") and a Certificate of Trust filed with the Secretary
of State of the State of Delaware on April 1, 2003, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in the
Company Securities (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Trust Agreement,
wish to amend and restate each and every term and provision of the Original
Trust Agreement.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a trust under the Statutory Trust Act and that this Trust Agreement
constitutes the governing instrument of such trust, the Trustees declare that
all assets contributed to the Trust will be held in trust for the benefit of the
Holders, from time to time, of the securities representing undivided beneficial
ownership interests in the assets of the Trust issued hereunder, subject to the
provisions of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Trust Agreement has the same meaning
throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement" are
to this Trust Agreement as modified, supplemented or amended from time to time;
(d) all references in this Trust Agreement to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Trust Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Agreement unless otherwise defined in this Trust Agreement or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"ABN AMRO Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, director, shareholder, member, partner, employee,
representative or agent of the Trust or its Affiliates.
"Administrative Action" means any judicial decision, official
administrative pronouncement, published or private ruling, regulatory procedure,
notice or announcement (including any notice or announcement of intent to adopt
such procedures or regulations).
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with, such specified Person.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Bank" means ABN AMRO Bank N.V.
"Book-Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as set forth in Section 10.04 of this Trust
Agreement.
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"Business Day" means any day on which commercial and foreign exchange
markets settle payments in London, Amsterdam, Luxembourg and New York City.
"Capital Funding LLC" means any ABN AMRO Capital Funding LLC.
"Certificate" means a Trust Common Security Certificate or
a Trust Preferred Security Certificate.
"Class B Guarantee" means a Company Securities Guarantee where the Company
Securities are Class B Preferred Securities.
"Class B Preferred Securities" means Company Securities consisting of
Class B preferred securities issued by a Capital Funding LLC.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Trust Preferred Securities and in whose name or in the name of a nominee of whom
shall be registered a Global Certificate and which shall undertake to effect
book-entry transfers and pledges of beneficial interests in the Trust Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of interest in securities
deposited with the Clearing Agency.
"Closing Date" means [DATE].
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Company" means [ISSUER OF SECURITIES HELD BY THE TRUST].
"Company Enforcement Event" means the non-payment of Dividends on the
Company Securities for four consecutive Dividend Periods or any six Dividend
Periods.
"Company Securities" means the [SECURITIES] issued by the Company.
"Company Securities Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
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Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Company Securities Guarantee" means [the guarantee dated as of [DATE]
executed and delivered by the Guarantor, [__] as the initial purchaser of the
Company Securities, and [__] as the Company Securities Guarantee Trustee, for
the benefit of the holders from time to time of the Company Securities].
"Company Securities Rights Agreement" means [NAME OF AGREEMENT].
"Contingent Distribution" means [LLC Contingent Distribution / Trust
Contingent Distribution]
"Contingent Guarantee" means [the guarantee, dated as of [DATE], executed
and delivered by the Guarantor, [__] for the benefit of [__], and [the
Contingent Guarantee Trustee].
"Corporate Trust Office" means the principal corporate trust office of the
Property Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at [ADDRESS].
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Definitive Trust Preferred Security Certificates" has the meaning set
forth in Section 10.04 of this Trust Agreement.
"Delaware Trustee" has the meaning set forth in Section 3.11, 6.02 of this
Trust Agreement.
"Dividends" means cash income distributions.
"Dividend Date" means the last day of each [MONTH] of each year.
"Dividend Period" means each period beginning on the date of original
issuance of the Trust Preferred Securities or on a Dividend Date and ending on
the day that precedes the next succeeding Dividend Date.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
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"Fiduciary Indemnified Person" has the meaning set forth in Section
11.04(a)(iv) of this Trust Agreement.
"Fiscal Period" means each calendar quarter.
"Fiscal Year" has the meaning set forth in Section 12.01 of this Trust
Agreement.
"Global Certificate" has the meaning set forth in Section 10.04 of this
Trust Agreement.
"Guarantee Independent Administrator" has the meaning set forth in Section
8.05(l).
"Guarantee Independent Director" means the independent director of the
Company elected pursuant to Section 10.04(i)(iii) of the LLC Agreement upon
non-payment for a day of a claim made under either of the Class B Guarantee or
the Trust Securities Guarantee.
"Guarantee Trustees" means the Trustees under any of the Guarantees.
"Guarantees" means (i) the Trust Securities Guarantee and (ii) the Class B
Guarantee or the Company Securities Guarantee, as applicable.
"Guarantor" means [ABN AMRO HOLDING N.V. / ABN AMRO BANK N.V.].
"Holder" means a Person in whose name a Certificate representing a Trust
Security is registered, such Person being a beneficial owner within the meaning
of the Statutory Trust Act.
"Holding" means ABN AMRO Holding N.V.
"Indemnified Person" means an ABN AMRO Indemnified Person or a Fiduciary
Indemnified Person.
"Initial Intercompany Security" means [SECURITY] issued by [ISSUER OF
INITIAL INTERCOMPANY SECURITY].
"Intercompany Securities" means the Initial Intercompany Security and,
upon maturity or redemption thereof, any successor intercompany securities that
will constitute the assets of the Company.
"Investment Company" means an investment company as defined in the 1940
Act.
"Legal Action" has the meaning set forth in Section 3.06(h) of this Trust
Agreement.
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"List of Holders" has the meaning set forth in Section 2.02 of this Trust
Agreement.
"LLC Agreement" means Amended and Restated LLC Agreement of a Capital
Funding LLC dated as of [DATE].
"LLC Contingent Distribution" means payments received by the Company for
the benefit of the holders of Class B Preferred Securities under the LLC
Contingent Guarantee.
"LLC Contingent Guarantee" means a Contingent Guarantee entered into
between the Guarantor and a Capital Funding LLC.
"Majority in liquidation amount of" means, except as provided in the terms
of the Trust Securities or by the Trust Indenture Act, with respect to the Trust
Securities, Holders of outstanding Trust Securities voting together as a single
class or, with respect to the Trust Preferred Securities or the Trust Common
Securities, Holders of outstanding Trust Securities of such class, voting
separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Dividends to
the date upon which the voting percentages are determined) of all outstanding
Trust Securities or all outstanding Trust Securities of the relevant class, as
the case may be.
"Ministerial Action" means, a ministerial action (such as filing a form or
making an election or pursuing some other similar reasonable measure) which in
the sole judgment of the Guarantor has or will cause no adverse effect on the
Trust, the Company, the Trust Common Securities Owner, the Holders or the Trust
Preferred Security Beneficial Owners and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as amended from time
to time, or any successor legislation.
"Officers' Certificate" means, with respect to any Person (who is not an
individual), a certificate signed by two Authorized Officers of such Person,
and, with respect to a natural person, a certificate signed by such person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
6
(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.
"Ordinary Shares" means the ordinary shares of the Guarantor, any other
shares of the Guarantor's capital stock ranking junior to the Parity Preferred
Shares, if any, and any guarantees of the Guarantor ranking junior to the Parity
Guarantees.
"Parity Guarantee" means [SPECIFIC GUARANTEES], and any other guarantee
issued by the Guarantor of any preferred securities or preferred or preference
shares issued by any subsidiary of the Guarantor, if such guarantee ranks pari
passu with the Guarantor's obligations under the Guarantees.
"Parity Preferred Shares" means the most senior ranking preferred or
preference shares issued by the Guarantor.
"Payment Amount" has the meaning set forth in Section 7.01(c) of this
Trust Agreement.
"Paying Agent" has the meaning set forth in Section 3.08(g) of this Trust
Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Property Account" has the meaning set forth in Section 3.08(c) of this
Trust Agreement.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.03 of this Trust Agreement.
"Pro Rata" means, in reference to any distributions on or redemptions of
Trust Securities or the distribution of Company Securities or any other payment
with respect to Trust Securities in connection with a Trust Special Event or
liquidation of the Trust, pro rata to each Holder of Trust Securities according
to the aggregate liquidation amount of the Trust Securities held by the relevant
Holder in relation to the aggregate liquidation amount of all Trust Securities
outstanding.
7
"Qualified Subsidiary" means one or more subsidiaries of Holding or the
Bank which are deemed to be a "company controlled by the parent company" under
Rule 3a-5, as amended, of the 1940 Act.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 8.02 of this Trust
Agreement.
"Regular Trustee" has the meaning set forth in Section 6.01 of this Trust
Agreement.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers, who has
direct responsibility for the administration of the Trust, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Services Agreement" means [The Services Agreement, dated as of [DATE]
entered into by the Company, the Trust, the [Trust Common Security Owner] and
the Guarantor].
"Special Director" means, where the Company is a Capital Funding LLC, a
director elected to the Board of Directors of the Company (the "Board") by the
holders of the Class B Preferred Securities pursuant to Section 10.04(i) of the
LLC Agreement upon the occurrence of a Company Enforcement Event.
"Sponsor" means LaSalle Funding LLC or any successor entity in a merger,
consolidation, amalgamation or by assignment in its capacity as sponsor of the
Trust.
"Statutory 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, or any
successor legislation.
"Successor Delaware Trustee" has the meaning set forth in Section 6.07(b)
of this Trust Agreement.
"Successor Entity" has the meaning set forth in Section 3.15 of this Trust
Agreement.
8
"Successor Property Trustee" has the meaning set forth in Section 6.07(b)
of this Trust Agreement.
"Successor Trust Securities" has the meaning set forth in Section 3.15 of
this Trust Agreement.
"Super Majority" has the meaning set forth in Section 2.06(a)(ii) of this
Trust Agreement.
"10% in liquidation amount of" means, except as provided in the terms of
the Trust Securities or by the Trust Indenture Act, with respect to the Trust
Securities, Holders of outstanding Trust Securities voting together as a single
class or, with respect to the Trust Preferred Securities or the Trust Common
Securities, Holders of outstanding Trust Securities of such class voting
separately as a class, who are the record owners of 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Dividends to
the date upon which the voting percentages are determined) of all outstanding
Trust Securities or all outstanding Trust Securities of the relevant class, as
the case may be.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Common Security" has the meaning set forth in Section 8.01 of this
Trust Agreement.
"Trust Common Security Certificate" means a definitive certificate in
fully registered form representing a Trust Common Security substantially in the
form of Exhibit A-2.
"Trust Common Securities Owner" means [_____].
"Trust Contingent Distribution" has the meaning set forth in Section
4.03(b)(ii).
"Trust Contingent Guarantee" means a Contingent Guarantee entered into
between the Guarantor and the Trust.
"Trust Enforcement Event" means the occurrence, at any time, of (i)
non-payment of Dividends on the Trust Preferred Securities for four consecutive
Dividend Periods or any six Dividend Periods, (ii) a default by Guarantor in
respect of any of its obligations under the Trust Securities Guarantee, (iii)
non-payment of a claim within one day following the making of such claim by
either of the Guarantee Trustees or a Holder of the Company Securities or the
Trust Securities under either of the Guarantees or (iv) a Company Enforcement
Event.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trust Investment Company Event" means that the Guarantor shall have
requested and received an opinion of a nationally recognized U.S. law firm
experienced in such matters to the effect that there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
from time to time, or any successor legislation (the "1940 Act") as a result of
(i) any judicial decision, any pronouncement or interpretation (irrespective of
the manner made known), the adoption or amendment of any law, rule or
regulation, any notice or announcement (including any notice or announcement of
intent to adopt such rule or regulation) by any U.S. legislative body, court,
governmental agency or regulatory authority after the date hereof or (ii) any
change after the date hereof in the laws of The Netherlands relating to the
enforceability of either of the Guarantees thereunder, as confirmed in an
opinion of a nationally recognized Dutch law firm experienced in such matters.
"Trust Liquidation" has the meaning set forth in Section 9.02(a) of this
Trust Agreement.
"Trust Liquidation Distribution" has the meaning set forth in Section
9.02(a) of this Trust Agreement.
"Trust Preferred Security" has the meaning set forth in Section 8.01(a) of
this Trust Agreement.
"Trust Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate representing a
Trust Preferred Security substantially in the form of Exhibit A-1.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Securities Guarantee" means the Trust Securities Guarantee
Agreement dated as of [DATE] among the Guarantor, the Initial Holders named
therein, and the Guarantee Trustee, for the benefit of the Holders form time to
time of the Trust Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
10
"Trust Tax Event" means the receipt by the Guarantor or any of its
Affiliates of an opinion of a nationally recognized law firm or other tax
adviser in the United States or The Netherlands, as appropriate, experienced in
such matters, to the effect that, as a result of (i) any amendment to, or
clarification of, or change (including any announced prospective change) in, the
laws or treaties (or any regulations promulgated thereunder) of the United
States or The Netherlands or any political subdivision or taxing authority
thereof or therein affecting taxation, (ii) any Administrative Action or (iii)
any amendment to, clarification of, or change in the official position or the
interpretation of any Administrative Action or any interpretation or
pronouncement that provides for a position with respect to any Administrative
Action that differs from the theretofore generally accepted position, in each
case, by any legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or change is
made known, which amendment, clarification or change is effective, or which
pronouncement or decision is announced, on or after the date of issuance of the
Trust Securities, there is more than an insubstantial risk that the Trust will
be subject to more than a de minimis amount of taxes, duties or other
governmental charges, provided that an obligation to withhold any present or
future tax, duty, assessment or other governmental charge on any Intercompany
Security in respect of payment made to the Company[, where the Company is a
Capital Funding LLC,] on such Intercompany Security shall not constitute a
"Trust Tax Event" under any circumstances.
"Trustee" or "Trustees" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application. (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. A term defined in the Trust Indenture Act has the same meaning
when used in this Trust Agreement, unless otherwise defined in this Trust
Agreement or unless the context otherwise requires.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
11
(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 2.02. Lists of Holders of Trust Securities. (a) If the Trust
Preferred Securities are not held in the form of a Global Certificate registered
in the name of Cede & Co. or a nominee of DTC, each of the Sponsor and the
Regular Trustees on behalf of the Trust shall provide the Property Trustee (i)
within 14 days after each record date for payment of Dividends, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Trust Securities ("List of Holders") as of such record
date and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Property Trustee. Within [60] days after
[DATE] of each year, the Property Trustee shall provide to the Holders of the
Trust Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.04. Periodic Reports to Property Trustee. Each of the Guarantor
and the Regular 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 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.
Section 2.05. Evidence of Compliance with Conditions Precedent. Each of
the Guarantor and the Regular 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) may be
given in the form of an Officers' Certificate.
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Section 2.06. Trust Enforcement Events; Waiver. (a) The Holders of a
Majority in liquidation amount of Trust Preferred Securities may, by vote, on
behalf of the Holders of all of the Trust Preferred Securities, waive any past
Trust Enforcement Event in respect of the Trust Preferred Securities and its
consequences, provided that, if the underlying event of default or Company
Enforcement Event:
(i) is not waivable under the Trust Securities Guarantee or the
Company Securities Rights Agreement, the Trust Enforcement Event under
this Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater than a
Majority in liquidation amount of the Trust Preferred Securities to be
waived under the Trust Securities Guarantee or the consent or vote of the
Holders of more than 50% of the aggregate liquidation amount of the
Company Securities to be waived under the Company Securities Rights
Agreement (a "Super Majority"), the Trust Enforcement Event under this
Trust Agreement may only be waived by the vote of the Holders of at least
the relevant Super Majority in liquidation amount of the Trust Preferred
Securities.
The foregoing provisions of this Section 2.06 shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Trust Enforcement Event with
respect to the Trust Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other default or Trust Enforcement Event with
respect to the Trust Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Trust Preferred Securities of Trust
Enforcement Events with respect to the Trust Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Trust Common Securities of
any such Trust Enforcement Event with respect to the Trust Common Securities for
all purposes of this Trust Agreement without any further act, vote, or consent
of the Holders of the Trust Common Securities.
(b) The Holders of a Majority in liquidation amount of the Trust Common
Securities may, by vote, on behalf of the Holders of all of the Trust Common
Securities, waive any past Trust Enforcement Event with respect to the Trust
Common Securities and its consequences, provided that, if the underlying event
of default or Company Enforcement Event:
(i) is not waivable under the Company Securities Rights Agreement,
except where the Holders of the Trust Common Securities are deemed to have
waived such Trust Enforcement Event under this Trust Agreement as provided
below in this Section 2.06(b), the Trust
13
Enforcement Event under this Trust Agreement shall also not be waivable;
or
(ii) requires the consent or vote of the Holders of a Super Majority
to be waived, except where the Holders of the Trust Common Securities are
deemed to have waived such Trust Enforcement Event under the Trust
Agreement as provided below in this Section 2.06(b), the Trust Enforcement
Event under this Trust Agreement may only be waived by the vote of the
Holders of at least the relevant Super Majority in liquidation amount of
the Trust Common Securities;
provided further, that each Holder of Trust Common Securities will be deemed to
have waived any such Trust Enforcement Event and all Trust Enforcement Events
with respect to the Trust Common Securities and its consequences until all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
have been so cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Property Trustee in accordance with the terms of the Trust
Securities. The foregoing provisions of this Section 2.06(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Trust Agreement and the Trust Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.06(b), upon such waiver, any such default shall cease to exist
and any Trust Enforcement Event with respect to the Trust Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or other
default or Trust Enforcement Event with respect to the Trust Common Securities
or impair any right consequent thereon.
(c) A waiver of Company Enforcement Events under the Company Securities
Rights Agreement by the Property Trustee at the direction of the Holders of the
Trust Securities constitutes a waiver of the corresponding Trust Enforcement
Event under this Trust Agreement. The foregoing provisions of this Section
2.06(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Trust Agreement and the Trust Securities, as permitted by the
Trust Indenture Act.
Section 2.07. Trust Enforcement Event; Notice. The Property Trustee shall,
within 90 days after the occurrence of a Trust Enforcement Event, transmit by
mail, first class postage prepaid, to the Holders of the Trust Securities,
notices of all Events of Default with respect to the Trust Securities actually
known to a Responsible Officer of the Property Trustee, unless such Events of
Default have been cured before the giving of such notice (the term "Events of
Default" for the
14
purposes of this Section 2.07 being hereby defined to be defaults as defined in
the Trust Securities Guarantee and the Company Securities Rights Agreement, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, the Property Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Property Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Securities.
ARTICLE 3
ORGANIZATION
Section 3.01. Name. The Trust is named "ABN AMRO Capital Funding Trust
[ ]," as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.02. Office. The address of the principal office of the Trust is
[135 South LaSalle Street, Chicago, Illinois 60603]. On ten Business Days'
written notice to the Holders, the Regular Trustees may designate another
principal office.
Section 3.03. Purpose. The exclusive purposes and functions of the Trust
are (a) to issue and sell Trust Securities representing undivided beneficial
ownership interests in the assets of the Trust and to use the proceeds from such
sale to acquire the Company Securities, (b) enter into and perform its duties
under the related documents to which it is a party and (c) except as otherwise
limited herein, to engage in only those other activities necessary, or
incidental thereto, in all events without causing the Trust to be classified as
other than a grantor trust for United States federal income tax purposes.
Section 3.04. Authority. Subject to the limitations provided in this Trust
Agreement and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Trust Agreement.
Section 3.05. Title to Property of the Trust. Except as provided in
Section 3.08 with respect to the Company Securities, the LLC Contingent
Distribution and the Property Account or as otherwise provided in this Trust
Agreement, legal
15
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided ownership interest in the assets of the Trust.
Section 3.06. Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) To issue and sell the Trust Preferred Securities and the Trust Common
Securities in accordance with this Trust Agreement; provided, however, that the
Trust may issue no more than one series of Trust Preferred Securities and no
more than one series of Trust Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Trust Securities, and
the issuance of Trust Securities shall be limited to a one-time, simultaneous
issuance of both Trust Preferred Securities and Trust Common Securities on the
Closing Date;
(b) In connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Guarantor, to:
(i) execute and file with the Commission any post-effective
amendments or supplements to the registration statement No. 333-104778 on
Form F-3;
(ii) execute and file any documents prepared by the Guarantor, or
take any acts as determined by the Guarantor to be necessary in order to
qualify or register all or part of the Trust Preferred Securities in any
State in which the Guarantor has determined to qualify or register such
Trust Preferred Securities for sale;
(iii) execute and file applications, prepared by the Guarantor, to
the [New York Stock Exchange, Inc.] and the [Luxembourg Stock Exchange]
for listing upon notice of issuance of any Trust Preferred Securities;
(iv) execute and file with the Commission a registration statement
on Form 8-A, including any amendments thereto, prepared by the Guarantor,
relating to the registration of the Trust Preferred Securities under
Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement providing for
the sale of the Trust Preferred Securities and the related documents to
which the Trust is a party and perform the duties and obligations of the
Trust thereunder;
(c) To acquire the Company Securities with the proceeds of the sale of the
Trust Preferred Securities and the Trust Common Securities; provided,
16
however, that the Regular Trustees shall cause legal title to the Company
Securities to be held of record in the name of the Property Trustee for the
benefit of the Holders;
(d) To give the Guarantor and the Property Trustee prompt written notice
of the occurrence of a Trust Special Event; provided that the Regular Trustees
shall consult with the Guarantor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Trust Special
Event;
(e) To establish a record date with respect to all actions to be taken
hereunder that require a record date to be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Dividends, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Trust Preferred Securities and the Holders of the
Trust Common Securities as to such actions and applicable record dates;
(f) To give prompt written notice to the Holders of any notice received
from the Company of the Company's election not to make a current, quarterly
distribution on the Company Securities under the Company Securities Rights
Agreement;
(g) To take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Trust Securities;
(h) To bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.08(f), the Property Trustee has
the exclusive power to bring such Legal Action;
(i) To employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) To cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act, subject to the terms and provisions hereof;
(k) To give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(l) To incur expenses that are necessary or incidental to carrying out any
of the purposes of the Trust;
(m) To act as, or appoint another Person to act as, registrar and transfer
agent for the Trust Securities;
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(n) To execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) To take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of the Trust Preferred Securities
or to enable the Trust to effect the purposes for which the Trust was created;
(p) To take any action, or to take no action, not inconsistent with this
Trust Agreement or with applicable law, that the Regular Trustees determine in
their discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.06; and
(q) To take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section
3.06 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.03, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.08.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.06 shall be reimbursed by the [Trust Common Securities Owner] pursuant to the
Services Agreement.
Section 3.07. Prohibition of Actions by the Trust and the Trustees. The
Trust shall not, and the Trustees (including the Property Trustee) shall use
commercially reasonable efforts to cause the Trust not to, engage in any
activity other than as required or authorized by this Trust Agreement. In
particular, the Trust shall not and the Trustees (including the Property
Trustee) shall use commercially reasonable efforts to cause the Trust not to:
(a) invest any proceeds received by the Trust from holding the Company
Securities, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Trust Agreement and of the Trust
Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
18
(d) make any loans or incur any indebtedness or acquire any securities
other than the Company Securities;
(e) possess any power or otherwise act in such a way as to vary the Trust
assets or the terms of the Trust Securities in any way whatsoever, except as
otherwise specifically provided herein;
(f) issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Trust Securities;
(g) other than as set forth herein, consent to any amendment, modification
or termination of the Company Securities Rights Agreement or the Company
Securities where such consent shall be required; and
(h) other than in connection with the liquidation of the Trust pursuant to
a Trust Special Event or upon redemption of all the Trust Securities, file a
certificate of cancellation of the Trust.
Section 3.08. Powers and Duties of the Property Trustee. (a) The legal
title to the Company Securities shall be owned by and held of record in the name
of the Property Trustee in trust for the benefit of the Holders of the Trust
Securities in accordance with this Trust Agreement. The right, title and
interest of the Property Trustee to the Company Securities shall vest
automatically in each Person who may hereafter be appointed as Property Trustee
in accordance with Section 6.07. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Company
Securities have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Company Securities to the Regular Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders and, upon the
receipt of payments of funds made in respect of the Company Securities
held by the Property Trustee (which payments shall include, but not be
limited to, distributions made pursuant to any Company Securities
Guarantee and any LLC Contingent Guarantee), deposit such funds into the
Property Account and make payments to the Holders from the Property
Account in accordance with Section 7.01. Funds in the Property Account
shall be held uninvested until disbursed in accordance with this Trust
Agreement. The Property Account shall be an account that is maintained
with a banking institution authorized to exercise corporate trust powers
and having a combined capital and surplus of at least
19
$50,000,000 and subject to supervision or examination by federal or state
authority;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Trust Preferred Securities and
the Trust Common Securities to the extent the Company Securities are
redeemed; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Trust Securities, engage in
such ministerial activities as shall be necessary or appropriate to effect
the distribution of the Company Securities to Holders upon the occurrence
of a Trust Special Event.
(d) The Property Trustee shall take all actions and perform all such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Trust Securities.
(e) The Property Trustee may take any Legal Action which arises out of or
in connection with (i) a Trust Enforcement Event of which a Responsible Officer
of the Property Trustee has actual knowledge or (ii) the Property Trustee's
duties and obligations under this Trust Agreement or the Trust Indenture Act.
(f) For so long as the Property Trustee is the holder of record of the
Company Securities, the Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of record of Company
Securities and, if a Trust Enforcement Event occurs and is continuing, the
Property Trustee shall, for the benefit of Holders, enforce its rights as holder
of record of the Company Securities, subject to the rights of the Holders
pursuant to the terms of such Trust Securities including (i) the right to vote,
as directed by a Majority in liquidation amount of the Trust Preferred
Securities, for the election of two Special Directors to the Board (to the
extent that such Trust Enforcement Event results from a Company Enforcement
Event), (ii) the rights of the Holders of the Company Securities under any
Company Securities Guarantee as it relates thereto, (iii) the rights of the
holders of record of the Company Securities to receive Dividends (only if and to
the extent declared by the Company or deemed to have been declared under the
Company Securities Guarantee) on the Company Securities, (iv) in the case of a
Trust Enforcement Event set forth in clause (iii) of the definition of "Trust
Enforcement Event" in Section 1.01 hereof, the right to vote, as directed by a
Majority in liquidation amount of the Trust Preferred Securities, for the
election of the Guarantee Independent Director and (v) the right of the holder
of record of the Company Securities to receive the LLC Contingent Distribution,
if any.
(g) The Property Trustee may authorize one or more Persons to pay
Dividends, redemption payments or liquidation payments on behalf of the Trust
(each, a "Paying Agent") with respect to all Trust Securities and any such
Paying
20
Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying
Agent may be removed by the Property Trustee at any time and one or more
successor Paying Agents or additional Paying Agents may be appointed at any time
by the Property Trustee.
(h) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders pursuant to the terms of the Trust
Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.07.
(iii) Subject to this Section 3.08, the Property Trustee shall have
none of the duties, liabilities, powers or authority of the Regular
Trustees set forth in Section 3.06.
The Property Trustee must exercise the powers set forth in this Section
3.08 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.03, and the Property Trustee shall not take any action that
is inconsistent with the purposes and functions of the Trust set out in Section
3.03.
Section 3.09. Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust Enforcement Event
and after the curing or waiver of all Trust Enforcement Events that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Trust Agreement and no implied covenants shall be read into this
Trust Agreement against the Property Trustee. In case a Trust Enforcement Event
has occurred (that has not been cured or waived pursuant to Section 2.06) of
which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Trust Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and after
the curing or waiving of all such Trust Enforcement Events that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust
21
Agreement and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Trust Agreement, and no implied covenants or
obligations shall be read into this Trust Agreement against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Trust Agreement, but need not confirm or
investigate the accuracy of any mathematical calculations or other
facts stated therein;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) subject to the requirement of the Property Trustee receiving a
tax opinion as set forth in Section 8.05(d) or (f), as the case may be,
the Property Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in liquidation amount
of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Trust Agreement or
indemnity reasonably satisfactory to the Property Trustee against such
expense, risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Company Securities and the
Property Account shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own account,
22
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Company Securities or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.08(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees, the Guarantor or the Sponsor with
their respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for any default or misconduct of the Regular Trustees,
the Guarantor or the Sponsor.
Section 3.10. Certain Rights of Property Trustee. (a) Subject to the
provisions of Section 3.09:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(ii) any direction or act of the Sponsor, the Guarantor or the
Regular Trustees acting on behalf of the Trust contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor, the Guarantor or the Regular
Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or reregistration thereof;
23
(v) the Property Trustee may, at the expense of the [Trust Common
Securities Owner], consult with counsel or other experts of its own
selection and the advice or opinion of such counsel or experts with
respect to legal matters or advice within the scope of such counsel or
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion;
such counsel may be counsel to the [Trust Common Securities Owner] or any
of its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions concerning
the administration of this Trust Agreement from any court of competent
jurisdiction;
(vi) 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 Holder, unless (a) such Holder shall have
provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the fees, charges, costs,
expenses (including attorneys' fees and expenses and the expenses of the
Property Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Property
Trustee and (b) the Property Trustee has been provided with the legal
opinions, if any, required by Section 8.05(d) or (f), as the case may be,
of this Agreement; provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the
occurrence of a Trust Enforcement Event, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, but shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders, and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
24
perform any such action and no third party shall be required to inquire as
to the authority of the Property Trustee to so act or as to its compliance
with any of the terms and provisions of this Trust Agreement, both of
which shall be conclusively evidenced by the Property Trustee's or its
agent's taking such action;
(x) whenever in the administration of this 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 which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions; provided,
however, that the Property Trustee shall not be required to take any
action unless it shall have obtained such legal opinions, if any, required
by Section 8.05(d) or (f), as the case may be, of this Trust Agreement;
(xi) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement;
(xii) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Trust Agreement;
(xiii) the Property Trustee shall not be deemed to have notice of
any default or Event of Default unless a Responsible Officer of the
Property Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default or Event of Default is received
by the Property Trustee at the Corporate Trust Office of the Property
Trustee, and such notice references the Trust Preferred Securities and
this Trust Agreement; and
(xiv) in the event that direction from the Regular Trustees is
required hereunder, the Property Trustee, at its option, may make
application to the Regular Trustee for written instructions and any such
application shall set forth in writing any action proposed to be taken or
omitted by the Property Trustee under this Trust Agreement and the date on
and/or after which such action shall be taken or such omission shall be
effective. The Property Trustee shall not be liable for any action taken
by, or omission of, the Property Trustee in accordance with a proposal
25
included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after
the date any Regular Trustee actually receives such application, unless
any such Regular Trustee shall have consented in writing to any earlier
date) unless prior to taking any such action (or the effective date in the
case of an omission), the Property Trustee shall have received written
instructions in response to such application providing the directions
required to be given hereunder.
In the event that the Property Trustee is also acting as
authenticating agent, Paying Agent, transfer agent and security registrar,
the rights, privileges, immunities, benefits and protections afforded to
the Property Trustee pursuant to this Article 3 shall also be afforded to
such authenticating agent, Paying Agent, transfer agent and security
registrar and to each agent, custodian and other Person employed to act
hereunder.
(b) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 3.11. Delaware Trustee. Notwithstanding any provision of this
Trust Agreement other than Section 3.11, 6.02, 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 Regular Trustees or the Property Trustee
described in this Trust Agreement. Except as set forth in Section 3.11, 6.02,
the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Statutory Trust Act. In no
event shall the Property Trustee or the Delaware Trustee be liable for any act
or omission of any of the Regular Trustees hereunder.
Section 3.12. Execution of Documents. Unless otherwise determined by the
Regular Trustees, and except as otherwise required by the Statutory Trust Act,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.06.
Section 3.13. Not Responsible for Recitals or Issuance of Trust
Securities. The recitals contained in this Trust Agreement and the Trust
Securities shall be taken as the statements of the Sponsor and the Guarantor,
and the Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the property of
the Trust or any part
26
thereof. The Trustees make no representations as to the validity or sufficiency
of this Trust Agreement or the Trust Securities.
Section 3.14. Duration of Trust. The Trust, unless terminated pursuant to
the provisions of Article 9 hereof, shall have perpetual existence.
Section 3.15. Mergers. (a) The Trust may not consolidate, convert,
amalgamate, or merge with or into, be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, any corporation or
other body, except as described in Section 3.15(b) and (c).
(b) Trust may, with the consent of a majority of the Regular Trustees and
without the consent of the Holders, the Delaware Trustee or the Property
Trustee, consolidate, amalgamate, or merge with or into, or be replaced by, a
trust organized as such under the laws of any State of the United States;
provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Trust Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Trust Preferred Securities") so
long as the Successor Trust Preferred Securities rank the same as
the Trust Preferred Securities rank with respect to Dividends,
assets and payments upon liquidation, redemption and otherwise;
(ii) the Company expressly acknowledges a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee
as the record holder of the Company Securities;
(iii) the Trust Preferred Securities or any Successor Trust
Preferred Securities are listed, or any Successor Trust Preferred
Securities will be listed upon notification of issuance, on any national
securities exchange or with another organization on which the Trust
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Trust Preferred Securities (including any Successor Trust
Preferred Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the
27
Holders of the Trust Preferred Securities (including any Successor Trust
Preferred Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) the Guarantor guarantees the obligations of such Successor
Entity under the Successor Trust Securities to the same extent as provided
by the Trust Securities Guarantee; and
(viii) prior to such merger, consolidation, amalgamation or
replacement, the Guarantor has received an opinion of a nationally
recognized law firm experienced in such matters (which may be counsel to
the Guarantor) to the effect that:
(A) such merger, consolidation, amalgamation or replacement
will not adversely affect the rights, preferences and privileges of
the Holders of the Trust Preferred Securities (including any
Successor Trust Preferred Securities) in any material respect;
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company under the 1940 Act;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be classified
as a grantor trust for United States federal income tax purposes;
and
(D) following such merger, consolidation, amalgamation or
replacement, the Company, if a Capital Funding LLC, will not be
classified as an association or a publicly traded partnership
taxable as a corporation for United States federal income tax
purposes.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
unanimous consent of the Holders of the Trust Preferred Securities, consolidate,
amalgamate, or merge with or into, or be replaced by, any other entity or permit
any other entity to consolidate, amalgamate, or merge with or into, or replace
it, if such consolidation, amalgamation, merger or replacement would cause the
Trust or such Successor Entity not to be classified as a grantor trust for
United States federal income tax purposes.
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ARTICLE 4
GUARANTOR
Section 4.01. Responsibilities of the Guarantor. In connection with the
issue and sale of the Trust Preferred Securities, the Guarantor shall have the
exclusive right and responsibility to engage in the following activities:
(a) To prepare for filing by the Trust with the Commission any
post-effective amendments or supplements to the registration statement No.
333-104778 on Form F-3;
(b) To determine the states in which to take appropriate action to qualify
or register for sale all or part of the Trust Preferred Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Guarantor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(c) To prepare for filing by the Trust applications to the [New York Stock
Exchange, Inc.] and the [Luxembourg Stock Exchange] for listing upon notice of
issuance of any Trust Preferred Securities;
(d) To prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Trust Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) To negotiate the terms of an underwriting agreement and any pricing
agreement providing for the sale of the Trust Preferred Securities.
Section 4.02. Indemnification and Expenses of the Trustee. The Guarantor
agrees to indemnify the Property Trustee and the Delaware Trustee, any
predecessor Property Trustee and predecessor Delaware Trustee, and their
respective officers, directors, employees and agents for, and to hold each of
them harmless against, any and all loss, liability, claim, damage or expense
(including taxes other than taxes based on the income of the Property Trustee or
the Delaware Trustee) incurred without negligence or willful misconduct on the
part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder. The
provisions of this Section 4.02 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this Trust
Agreement.
Section 4.03. Covenants of the Guarantor. (a) The Guarantor, for so long
as any Trust Securities or Company Securities remain outstanding, shall not
issue any preferred or preference shares ranking senior in liquidation to its
obligations
29
under the Guarantees or the Contingent Guarantee or give any guarantee in
respect of any preferred securities or preferred or preference shares issued by
any of its subsidiaries if such guarantee would rank senior to the Guarantees or
the Contingent Guarantee, unless the Guarantees and the Contingent Guarantee are
amended to give the Holders and the holders of the Company Securities such
rights and entitlements as are contained in or attached to such other guarantee
so that the Guarantees and the Contingent Guarantee rank pari passu with such
guarantee and pari passu on liquidation with any declared dividend or declared
liquidation payments of such preferred or preference shares.
(b) (i) The Guarantor shall pay all amounts required to be paid pursuant
to the Guarantees and the Contingent Guarantee in respect of any Dividends on
the Trust Preferred Securities and, where the Company Securities consist of
Class B Preferred Securities, any Dividends on such Class B Preferred Securities
payable in respect of the most recent Dividend Period prior to any dividend or
other payment (except dividends in the form of the Ordinary Shares) upon the
Ordinary Shares (whether issued directly or by a subsidiary of the Guarantor and
entitled to the benefits of a guarantee ranking junior to the Guarantees and the
Contingent Guarantee).
(ii) If the Guarantor has entered into a Trust Contingent Guarantee, the
Guarantor has agreed to pay to the Trust, as and when due and to the extent set
forth in the Contingent Guarantee, the Contingent Guarantee Payments (as defined
in Section 2.01 of the Contingent Guarantee). The Contingent Guarantee may not
be enforced by anyone other than the Guarantee Independent Administrator,
appointed pursuant to and under the circumstances set forth in Section 8.05(l).
The Guarantee Independent Administrator may not enforce the Contingent Guarantee
unless a claim has been made by the Guarantee Trustee or a Holder of Trust
Securities under the Trust Guarantee and any such claim remains unpaid for 180
days or more. The Guarantee Independent Administrator shall enforce the claim of
the Trust under the Contingent Guarantee without prejudice to the claims of the
Guarantee Trustee or the Holders of Trust Securities under the Trust Guarantee.
Upon receipt by the Trust of payments from the Guarantor in respect of any claim
under the Trust Contingent Guarantee ("Trust Contingent Distribution"), such
payments shall be held by the Trust separately from all its other assets, as a
trust for the sole benefit of the Holders of Trust Preferred Securities and the
Guarantee Independent Administrator shall have the sole power to cause the Trust
to distribute the Trust Contingent Distribution pro rata to the Holders of
record of Trust Preferred Securities except to the extent any such Holders
received payments of a related claim under the Trust Guarantee.
(c) The Guarantor, for so long as any Trust Securities remain outstanding
shall maintain, or shall cause [the Bank or] any one or more Qualified
Subsidiaries thereof (each, a "Potential Securityholder") to maintain, 100%
ownership of the Trust Common Securities. Where the Company is a Capital
Funding LLC, the Guarantor, for so long as any Trust Securities or Class B
Preferred Securities remain outstanding, shall cause the Potential
Securityholder
30
to maintain 100% ownership of the Company Common Securities and the Trust Common
Securities. The Guarantor may permit the transfer of the Company Common
Securities from one Potential Securityholder to another Potential
Securityholder, provided that prior to such transfer it has received an opinion
of a nationally recognized law firm experienced in such matters to the effect
that (A) the Company, if a Capital Funding LLC, will continue to be treated as a
partnership for United States federal income tax purposes, and such transfer
will not cause the Company to be classified as an association or publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, (B) such transfer will not cause the Company or the Trust to be
required to register under the 1940 Act and (C) such transfer will not adversely
affect the limited liability of the Holders of the Company Securities.
(d) The Guarantor, for so long as any Trust Securities or, where the
Company is a Capital Funding LLC, Class B Preferred Securities remain
outstanding, (1) shall cause the Trust to remain a statutory trust and not to
voluntarily dissolve, wind up, liquidate or be terminated, except as permitted
by the Trust Agreement, (2) shall use its commercially reasonable efforts to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes, and (3) where the Company is a
Capital Funding LLC, (i) shall cause [the Bank] to maintain 100% ownership of
the Class A Preferred Securities, if any, through a Potential Securityholder,
(ii) shall cause the Company to remain a limited liability company, and (iii)
shall use its commercially reasonable efforts to ensure that the Company will
not be an association or a publicly traded partnership taxable as a corporation
for United States federal income tax purposes.
(e) The Guarantor, for so long as any of the Trust Securities are
outstanding, shall not permit, or take any action to cause, the dissolution,
liquidation, termination or winding up of the Trust, unless a Trust Special
Event occurs or the Guarantor is itself in liquidation and the approval of the
Dutch Central Bank, if then required, for such action has been received.
(f) The Guarantor, for so long as any of the Company Securities are
outstanding, shall not permit, or take any action to cause, the dissolution,
liquidation, termination or winding up of the Company, unless the Guarantor is
itself in liquidation and the approval of the Dutch Central Bank, if then
required, for such action has been received and all claims under the Guarantees
and the Contingent Guarantee shall have been paid in full and the Contingent
Distribution shall have been made.
(g) If the Company Securities are distributed to Holders in connection
with the involuntary or voluntary dissolution, winding-up or liquidation of the
Trust, the Guarantor shall use its commercially reasonable efforts to cause the
Company Securities to be listed on the [New York Stock Exchange], the
[Luxembourg Stock Exchange] or on such other national securities exchange or
similar organization as the Trust Preferred Securities are then listed or quoted
on.
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ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.01. [Trust Common Securities Owner]'s Purchase of Trust Common
Securities. On the Closing Date the [Trust Common Securities Owner] will
purchase all of the Trust Common Securities issued by the Trust, for an amount
at least equal to $[1,000], at the same time as the Trust Preferred Securities
are sold.
ARTICLE 6
TRUSTEES
Section 6.01. Number of Trustees. The number of Trustees initially shall
be five (5), and:
(a) At any time before the issuance of any Trust Securities, the [Trust
Common Securities Owner] may, by written instrument, increase or decrease the
number of Trustees; and
(b) After the issuance of any Trust Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Trust Common Securities voting as a class; provided, however, that
the number of Trustees shall in no event be less than three (3); and provided
further that (i) if required by the Statutory Trust Act, one Trustee shall be
the Delaware Trustee; (ii) there shall be at least one Trustee who is an
employee or officer of, or is affiliated with the [Trust Common Securities
Owner] (each, a "Regular Trustee"); and (iii) one Trustee shall be the Property
Trustee for so long as this Trust Agreement is required to qualify as an
indenture under the Trust Indenture Act, and such Property Trustee may also
serve as Delaware Trustee if it meets the applicable requirements.
Section 6.02. Delaware Trustee. If required by the Statutory Trust Act,
one Trustee (the "Delaware Trustee") shall be:
(a) A natural person who is a resident of the State of Delaware; or
(b) If not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee may also be the Delaware Trustee (in
which case Section 3.11 and 6.02 shall have no application).
Section 6.03. Property Trustee; Eligibility. (a) There shall at all times
be one Trustee which shall act as Property Trustee which shall:
32
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 6.03(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 6.03, the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 6.07(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Trust Common Securities (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantees shall be deemed to be specifically described in this
Trust Agreement for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee ("Initial Property Trustee") is [__].
Section 6.04. Qualifications of Regular Trustees and Delaware Trustee
Generally. Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
Section 6.05. Regular Trustees. The initial Regular Trustees ("Initial
Regular Trustees") shall be: [NAME], [NAME], [NAME], [NAME], and [NAME].
(a) Except as expressly set forth in this Trust Agreement and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
33
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Statutory Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.06.
Section 6.06. Delaware Trustee. The initial Delaware Trustee ("Initial
Delaware Trustee") shall be: [NAME].
Section 6.07. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.07(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the [Trust Common Securities Owner]; and
(ii) after the issuance of any Trust Securities, by vote of the
Holders of a Majority in liquidation amount of the Trust Common
Securities.
(b) (i) the Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.07(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.03 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor;
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 6.07(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Section 3.11, 6.02 and
6.04 (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor;
(iii) no such removal of the Property Trustee or the Delaware
Trustee shall be effective until all of the fees, charges, and expenses of
such entity (including reasonable fees and expenses of their agents and/or
counsel) have been paid.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
34
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and
has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof (including, without limitation,
the Contingent Distribution, if any) distributed to the Holders; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee; and
(iii) no such resignation of the Property Trustee or the Delaware
Trustee shall be effective until all of the fees, charges, and expenses of
such entity (including reasonable fees and expenses of their agents and/or
counsel) have been paid.
(d) The Holders of the Trust Common Securities shall use their best
efforts promptly to appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Delaware Trustee or the Property Trustee
delivers an instrument of resignation in accordance with this Section 6.07.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 6.07
within 60 days after delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Property Trustee or Delaware Trustee, as applicable,
may petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts
or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
Section 6.08. Vacancies among Trustees. If a Trustee ceases to hold office
for any reason and the number of Trustees is not reduced pursuant to Section
6.01, or if the number of Trustees is increased pursuant to Section 6.01, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees
35
or, if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.07.
Section 6.09. Effect of Vacancies. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.07,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Trust Agreement.
Section 6.10. Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees. Notice of any
in-person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Trust Agreement,
any action of the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person or by telephone) and
eligible to vote with respect to such matter, provided that a Quorum is present,
or without a meeting by the unanimous written consent of the Regular Trustees.
Notwithstanding the foregoing, any and all actions of the Regular Trustees may
be taken by the unanimous written consent of all Regular Trustees.
Section 6.11. Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21, his or
her power for the purpose of executing any documents contemplated in Section
3.06, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the
36
extent such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE 7
DIVIDENDS
Section 7.01. Dividends.
(a) Holders of Trust Preferred Securities shall be entitled to receive
cash distributions at a rate per annum of [__] of the stated liquidation
preference of $[__] per Trust Preferred Security. Dividends on the Trust
Preferred Securities will accumulate from the date of initial issuance or the
last Dividend Date (whichever is later) and will be payable [quarterly] in
arrears, on [__],[__],[__] and [__] of each year, commencing on [__] if, as and
when funds available for payment are held by the Property Trustee in the
Property Account. Dividends on the Trust Preferred Securities will not be
cumulative unless otherwise specified in a supplement, schedule or an amendment
hereto. If the Trust Preferred Securities are in the form of a Global
Certificate, the record date for payment of Dividends will be one Business Day
prior to the relevant Dividend Date. If the Trust Preferred Securities are in
the form of Definitive Trust Preferred Security Certificates, the record date
for payment of Dividends shall be the 15th day of the month in which the
relevant Dividend Date falls. In the event that any Dividend Date is not a
Business Day, payment of such Dividends shall be made on the next succeeding
day which is a Business Day (without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (without any reduction of interest or other payments in
respect of such early payment). The amount of Dividends payable for any
Dividend Period will be computed on the basis of a 360-day year of twelve
30-day months, and for any Dividend Period shorter than a three month period,
on the basis of the actual number of days elapsed. Amounts available to the
Trust for Dividends to the Holders of the Trust Preferred Securities will be
limited to payments received by the Trust from the Company on the Company
Securities (which payments shall
37
include, but not be limited to, distributions made on the Company Securities
pursuant to the Company Securities Guarantee and the Contingent Distribution) or
from the Guarantor pursuant to the Company Securities Guarantee paid by the
Guarantor to the Property Trustee. Dividends on the Company Securities will be
paid only if, as and when declared in the sole discretion of the Company or
deemed declared under any of the Guarantees.
(b) The right of Holders to receive dividends is noncumulative unless
otherwise specified in a supplement, schedule or an amendment hereto.
Accordingly, if the Property Trustee does not receive a dividend payment on the
Company Securities in respect of any Dividend Period, Holders shall have no
right to receive a dividend in respect of such Dividend Period, and the Trust
shall have no obligation to pay a dividend in respect of such Dividend Period,
whether or not dividends are declared payable in respect of any future Dividend
Period.
(c) If and to the extent that the Company makes a distribution (including,
without limitation, the Contingent Distribution, if any) on the Company
Securities held by the Property Trustee or the Guarantor makes a payment under
the Company Securities Guarantee (the amount of any such distribution or
guarantee payment being a "Payment Amount"), the Trust shall and the Property
Trustee is directed, to the extent funds are available for that purpose, to make
a Pro Rata distribution of the Payment Amount to the Holders; provided however
that, in the case of the Contingent Distribution only, the amount of payment to
any Holder shall be reduced by the amount that such Holder has actually received
in respect of the same claim under the Trust Securities Guarantee.
ARTICLE 8
ISSUANCE OF TRUST SECURITIES
Section 8.01. Designation and General Provisions Regarding Trust
Securities.
(a) Unless otherwise provided in a supplement, a schedule, or an amendment
hereto, the Regular Trustees shall on behalf of the Trust issue one class of
preferred securities representing undivided beneficial ownership interests in
the assets of the Trust and one class of common securities representing
undivided beneficial ownership interests in the assets of the Trust as follows:
(i) Trust Preferred Securities. [__] Trust Preferred Securities of
the Trust with an aggregate liquidation amount with respect to the assets
of the Trust of $[__] and a liquidation amount with respect to the assets
of the Trust of $[__] per preferred security, are hereby designated for
the purpose of identification only as [__] Noncumulative Guaranteed Trust
Preferred Securities (the "Trust Preferred Securities"). The Trust
Preferred Security Certificates evidencing the Trust Preferred Securities
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shall be substantially in the form of Exhibit A-1 to this Trust Agreement,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Trust Preferred Securities are listed.
(ii) Trust Common Securities. [__] Trust Common Securities of the
Trust with an aggregate liquidation amount with respect to the assets of
the Trust of $[__] and a liquidation amount with respect to the assets of
the Trust of $[__] per common security, are hereby designated for the
purposes of identification only as [__] Noncumulative Guaranteed Trust
Common Securities (the "Trust Common Securities" and, together with the
Trust Preferred Securities, the "Trust Securities"). The Trust Common
Security Certificates evidencing the Trust Common Securities shall be
substantially in the form of Exhibit A-2 to this Trust Agreement, with
such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
(b) Except as provided in Section 8.02 and 9.02(b) of this Trust
Agreement, the Trust Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Trust Common Securities. The Trust shall issue
no securities or other interests in the assets of the Trust other than the Trust
Preferred Securities and the Trust Common Securities. The issuance of the Trust
Preferred Securities shall not be subject to any preemptive purchase rights of
any Person.
(c) Any Regular Trustee shall sign the Trust Securities for the Trust by
manual or facsimile signature. In case any Regular Trustee of the Trust who
shall have signed any of the Trust Securities shall cease to be a Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Trust Security, shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery of the Trust Agreement any
such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Trust Securities may be listed, or to conform to
usage.
A Trust Preferred Security shall not be valid until authenticated by the
manual signature of an Authorized Officer of the Property Trustee. A Trust
Common Security shall not be valid until acknowledged by the manual signature of
an Authorized Officer of the Property Trustee. Each such signature shall be
conclusive evidence that the Trust Preferred Security or the Trust Common
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Security has been authenticated or acknowledged, as the case may be, under this
Trust Agreement.
Upon a written order of the Trust, signed by at least one Regular Trustee,
directing the Property Trustee to authenticate and deliver Trust Securities, the
Property Trustee shall authenticate and deliver the Trust Securities for
original issue. The aggregate number of Trust Securities outstanding at any time
shall not exceed the sum of the numbers set forth in Section 8.01(a)(i) and
Section 8.01(a)(ii).
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Trust Securities. An authenticating agent may authenticate
Trust Preferred Securities whenever the Property Trustee may do so. Each
reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate of the
Sponsor.
(d) The consideration received by the Trust for the issuance of the Trust
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Trust Securities as provided in this Trust
Agreement, the Trust Securities so issued shall be deemed to be validly issued,
fully paid and nonassessable, subject to Section 11.01 with respect to the Trust
Common Securities.
(f) Every Person, by virtue of having become a Holder or a Trust Preferred
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement.
Section 8.02. Subordination of Trust Common Securities. Payment of
Dividends and other distributions, amounts on redemption or amounts upon
liquidation of the Trust shall be made Pro Rata among the Trust Common
Securities and the Trust Preferred Securities based on the liquidation
preference thereof; provided, however, that upon the occurrence and during the
continuance of an event of default under the Intercompany Securities or the
Company Securities Guarantee, no payment of Dividends or any other
distributions, amounts on redemption or amounts upon liquidation of the Trust
shall be made to Holders of Trust Common Securities unless payment in full in
cash of all accumulated and unpaid Dividends, amounts on redemption and amounts
upon liquidation of the Trust on the Trust Preferred Securities have been made
or provided for, and all funds immediately available to the Property Trustee
shall first be applied to payment in full in cash of all Dividends or other
distributions, amounts on redemption or amounts upon liquidation of the Trust on
the Trust Preferred Securities then due and payable.
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Section 8.03. Redemption of Trust Securities.
(a) Upon a purchase of the Company Securities by the Company upon
redemption or otherwise, the proceeds from such purchase shall be simultaneously
applied Pro Rata to redeem Trust Securities having an aggregate liquidation
amount equal to the Company Securities so purchased or redeemed for an amount
equal to $[ ] per Trust Security plus an amount equal to accumulated and unpaid
Dividends, plus Additional Amounts, if any, or such lesser amount as shall be
received by the Trust in respect of the Company Securities so purchased or
redeemed as calculated by the Regular Trustees (the "Redemption Price"). Holders
will be given not less than 30 nor more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Trust Securities are to be so
redeemed, the Trust Common Securities and the Trust Preferred Securities will be
redeemed Pro Rata and the Trust Preferred Securities to be redeemed will be
redeemed as described in Section 8.04(b) below.
(c) If, at any time, a Trust Special Event shall occur and be continuing,
the Regular Trustees shall, unless the Company Securities are redeemed in the
limited circumstances described below, within 90 days following the occurrence
of such Trust Special Event elect to either (i) dissolve the Trust upon not less
than 30 nor more than 60 days' notice to the Holders and upon not less than 30
nor more than 60 days' notice to Euroclear and Cedel, after providing Euroclear
and Cedel with such information relating to such dissolution and the Company
Securities as reasonably requested by either of them, with the result that,
after satisfaction of creditors, if any, of the Trust, Company Securities with
an aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of, with a Dividend rate identical to the Dividend rate of, and
accumulated and unpaid Dividends equal to accumulated and unpaid Dividends on,
and having the same record date for payment as, the Trust Preferred Securities
and the Trust Common Securities outstanding at such time would be distributed on
a Pro Rata basis to the Holders of the Trust Preferred Securities and the Trust
Common Securities in liquidation of such Holders' interests in the Trust;
provided, however, that, if at the time there is available to the Trust the
opportunity to eliminate, within such 90-day period, the Trust Special Event by
taking some Ministerial Action, such as filing a form or making an election, or
pursuing some other similar reasonable measure which in the sole judgment of the
Guarantor has or will cause no adverse effect on the Trust, the Company, the
Guarantor, the Common Securities Holder, the Holders or the Trust Preferred
Security Beneficial Owners and will involve no material cost, the Trust will
pursue such measure in lieu of dissolution or (ii) cause the Trust Preferred
Securities to remain outstanding, provided that in the case of this clause (ii),
the Guarantor shall pay any and all expenses incurred by or payable by the Trust
attributable to the Trust Special Event.
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(d) If the Company Securities are distributed to the Holders of the Trust
Preferred Securities, the Guarantor will use its commercially reasonable efforts
to cause the Company Securities to be listed on the [New York Stock Exchange],
the [Luxembourg Stock Exchange] or on such other national securities exchange or
similar organization as the Trust Preferred Securities are then listed or quoted
on.
(e) On the date fixed for any distribution of Company Securities, upon
dissolution of the Trust, (i) the Trust Preferred Securities and the Trust
Common Securities will no longer be deemed to be outstanding and (ii)
certificates representing Trust Securities will be deemed to represent the
Company Securities having an aggregate stated liquidation amount equal to the
stated liquidation amount of, and bearing accumulated and unpaid Dividends equal
to accumulated and unpaid Dividends on, such Trust Securities until such
certificates are presented to the Company or its agent for transfer or
reissuance.
Section 8.04. Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of Company
Preferred Securities in exchange for, the Trust Securities (a
"Redemption/Distribution Notice") (which notice will be irrevocable) will be
given by the Trust by mail to each Holder of Trust Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Company Securities. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this Section 8.04, a Redemption/Distribution Notice shall
be deemed to be given on the day such notice is first mailed by first-class
mail, postage prepaid, to Holders. Each Redemption/Distribution Notice shall be
addressed to the Holder at the address of such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding Trust Securities are
to be redeemed, the Trust Securities to be redeemed shall be redeemed Pro Rata
from each Holder or pursuant to the rules of any securities exchange on which
the Trust Preferred Securities are then listed, provided that, in respect of
Trust Preferred Securities registered in the name of and held of record by DTC
or its nominee (or any successor Clearing Agency or its nominee) or any nominee,
the distribution of the proceeds of such redemption will be made to each
Clearing Agency Participant (or Person on whose behalf such nominee holds such
securities) in accordance with the procedures applied by such agency or nominee.
(c) If Trust Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, and if the Company or the Guarantor has paid to
the Property Trustee a sufficient amount of cash in connection with the related
redemption of Company Securities, then (A) while the Trust Preferred Securities
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are in book-entry only form, by 9:00 am, New York City time, on the redemption
date, the Property Trustee will irrevocably deposit with DTC or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Trust Preferred Securities and will give
DTC irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities, and (B) with respect to Trust
Preferred Securities issued in definitive form and Trust Common Securities, the
Property Trustee will pay the relevant Redemption Price to the Holders of such
Trust Securities by check mailed to the address of the relevant Holder appearing
on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
date of such deposit, or on the redemption date, as applicable, Dividends will
cease to accumulate on the Trust Securities so called for redemption and all
rights of Holders will cease, except the right of the Holders to receive the
Redemption Price, but without interest on such Redemption Price. If any date
fixed for redemption of Trust Securities is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day
(without any reduction in interest or other payments in respect of such early
payment). If payment of the Redemption Price in respect of any Trust Securities
is improperly withheld or refused and not paid either by the Property Trustee or
by the Guarantor pursuant to the Trust Securities Guarantee, Dividends on such
Trust Securities will continue to accumulate at the then applicable rate from
the original redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price. For these purposes, the applicable
Redemption Price shall not include Dividends which are being paid to Holders who
were Holders on a relevant record date. Upon satisfaction of the foregoing
conditions, then immediately prior to the close of business on the date of such
deposit or payment, all rights of Holders of such Trust Securities so called for
redemption will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after the
date fixed for redemption, such Trust Securities will not accumulate Dividends
or bear interest.
Neither the Regular Trustees nor the Trust shall be required to register
or cause to be registered the transfer of any Trust Securities that have been
called for redemption.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Guarantor or its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or by private agreement.
Section 8.05. Voting Rights of Trust Preferred Securities.
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(a) Except as provided under Section 2.06 and this Article 8 and as
otherwise required by the Statutory Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Trust Preferred Securities will have no
voting rights.
(b) Subject to the requirement of the Property Trustee being provided with
a tax opinion in certain circumstances set forth in Section 8.05(d) and (f)
below, the Holders of a Majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Trust Agreement, including the right to direct the Property Trustee, as record
holder of the Company Securities, to (i) exercise the remedies available to it
under the Company Securities Rights Agreement as a record holder of the Company
Securities, including, where the Company is a Capital Funding LLC, the right to
elect the Special Directors and the Guarantee Independent Director, as the case
may be, of the Company in accordance with the LLC Agreement or (ii) consent to
any amendment, modification, or termination of the Company Securities Rights
Agreement or the Company Securities where such consent shall be required;
provided, however, that where a consent or action under the Company Securities
Rights Agreement would require the consent or act of the holders of more than a
majority of the Company Securities affected thereby, only the record holders of
the percentage of the aggregate stated liquidation amount of the Trust Preferred
Securities which is at least equal to the percentage required under the Company
Securities Rights Agreement may direct the Property Trustee to give such consent
or take such action on behalf of the Trust.
(c) If the Property Trustee fails to enforce the rights held by it for the
benefit of the Holders under the Company Securities or the Company Securities
Guarantee after a Holder has made a written request, such Holder may, to the
fullest extent permitted by applicable law, institute a legal proceeding
directly against the Company to enforce the rights held by the Property Trustee
for the benefit of the Holders under the Company Securities or directly against
the Guarantor in such Holder's own name to enforce the rights held by the
Property Trustee for the benefit of the Holders under the Company Securities
Guarantee, in each case without first instituting any legal proceeding against
the Property Trustee, the Trust or any other person or entity.
(d) The Property Trustee shall notify all Holders of the Trust Preferred
Securities of any notice of any Company Enforcement Event actually received by a
Responsible Officer of the Property Trustee from the Company with respect to the
Company Securities. Such notice shall state that such Company Enforcement Event
also constitutes a Trust Enforcement Event. Except with respect to directing the
time, method, and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described in
clauses 8.05(b) and 8.05(b) above unless the Property Trustee has been provided
with an opinion of independent tax counsel to the effect that as a result of
such
44
action, the Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes and that after such action each Holder will
be treated as owning an undivided ownership interest in the Company Securities.
(e) The Property Trustee shall notify all Holders of the non-payment
within one day following the making of a claim by the Guarantee Trustee or the
record holder of the Company Securities or the Holders under either of the
Guarantees.
(f) In the event the consent of the Property Trustee, as the record holder
of the Company Securities, is required under the Company Securities Rights
Agreement with respect to any amendment, modification or termination of the
Company Securities Rights Agreement, the Property Trustee shall request the
direction of the Holders with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Trust
Securities; provided, however, that where a consent under the Company Securities
Rights Agreement would require the consent of the record holders of more than a
majority in liquidation amount of the Company Securities, the Property Trustee
may only give such consent at the direction of the Holders of at least the same
proportion of the Trust Securities. The Property Trustee shall not take any such
action in accordance with the directions of the Holders unless the Property
Trustee has been provided with an opinion of tax counsel to the effect that as a
result of such action, the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes.
(g) A waiver of a Company Enforcement Event with respect to the Company
Securities will constitute a waiver of the corresponding Trust Enforcement
Event.
(h) Any required approval or direction of Holders of Trust Preferred
Securities may be given at a separate meeting of Holders of Trust Preferred
Securities convened for such purpose, at a meeting of all of the Holders or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Trust Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of Trust Preferred Securities. Each such
notice will include a statement setting forth the following information: (i) the
date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
(i) No vote or consent of the Holders of Trust Preferred Securities will
be required for the Trust to redeem and cancel Trust Preferred Securities or
distribute Company Securities in accordance with the Trust Agreement and the
terms of the Trust Securities.
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(j) Notwithstanding that Holders of Trust Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Trust Securities that are beneficially owned at such time by the
Guarantor or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Guarantor, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Trust Preferred Securities were not outstanding, except for the Trust Preferred
Securities purchased or acquired by the Guarantor or its affiliates in
connection with transactions effected by or for the account of customers of the
Guarantor or any of its Affiliates or in connection with the distribution or
trading of or market-making in connection with such Trust Preferred Securities;
provided, however, that persons (other than Affiliates of the Guarantor) to whom
the Guarantor or any of its Affiliates have pledged Trust Preferred Securities
may vote or consent with respect to such pledged Trust Preferred Securities
pursuant to the terms of such pledge.
(k) Holders of the Trust Preferred Securities will have no rights to
appoint or remove the Regular Trustees, Property Trustee or Delaware Trustee who
may be appointed, removed or replaced solely by the Trust Common Securities
Owner, as the Holder of all of the Trust Common Securities.
(l) Upon occurrence of the non-payment within one day following the making
of a claim under the Trust Securities Guarantee by the Guarantee Trustee or a
Holder of Trust Securities, the Holders of the Trust Preferred Securities shall
be entitled to appoint one independent administrator (the "Guarantee Independent
Administrator"). The Guarantee Independent Administrator shall be appointed by
the Property Trustee as directed by a majority in liquidation amount of the
Holders of the Trust Preferred Securities. Any Guarantee Independent
Administrator so appointed shall vacate office if, in such Guarantee Independent
Administrator's sole determination, the dividends on the Trust Preferred
Securities have been paid regularly at the dividend rate applicable to the
Company Securities in full by the Trust or the Guarantor under the Trust
Guarantee for one calendar year and all other amounts due under the Trust
Guarantee and the Contingent Guarantee have been paid. Any such Guarantee
Independent Administrator may be removed by, and shall not be removed except by,
the vote of a majority in liquidation amount of the Holders of the Trust
Preferred Securities.
Section 8.06. Voting Rights Of Trust Common Securities.
(a) Except as provided under Section 8.05 or as otherwise required by the
Statutory Trust Act, the Trust Indenture Act or other applicable law or provided
by the Trust Agreement, all voting rights will be held by the Holders of the
Trust Common Securities.
(b) The Holders of the Trust Common Securities are entitled, subject to
Article 6 hereof, to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees.
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(c) A waiver of a Company Enforcement Event with respect to the Company
Securities will constitute a waiver of the corresponding Trust Enforcement
Event.
(d) Any required approval or direction of Holders of Trust Common
Securities may be given at a separate meeting of Holders of Trust Common
Securities convened for such purpose, at a meeting of all of the Holders or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Trust Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of Trust Common Securities. Each such notice will
include a statement setting forth the following information: (i) the date of
such meeting or the date by which such action is to be taken, (ii) a description
of any resolution proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
(e) No vote or consent of the Holders of the Trust Common Securities shall
be required for the Trust to redeem and cancel Trust Common Securities or to
distribute Company Securities in accordance with the Trust Agreement and the
terms of the Trust Securities.
Section 8.07. Paying Agent. In the event that the Trust Preferred
Securities are not in book-entry only form, the Trust shall maintain in the
Borough of Manhattan, City of New York, State of New York, an office or agency
where the Trust Preferred Securities may be presented for payment ("Paying
Agent"). The Regular Trustees shall appoint the Paying Agent and may appoint one
or more additional paying agents in such other locations as they shall
determine. The term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent without prior notice to any Holder. The Trust
shall notify the Property Trustee of the name and address of any Paying Agent
not a party to this Trust Agreement. If the Trust fails to appoint or maintain
another entity as Paying Agent, the Property Trustee shall act as such. The
Trust or any of its Affiliates may act as Paying Agent. The Property Trustee
shall initially act as Paying Agent for the Trust Preferred Securities and the
Trust Common Securities or it may authorize another Paying Agent pursuant to
Section 3.08(g). The Paying Agent may resign as Paying Agent upon 30 days'
written notice to the Regular Trustees.
Section 8.08. Acceptance of Guarantees and Agreements. Each Holder of
Trust Preferred Securities and Trust Common Securities, and each Trust Preferred
Security Beneficial Owner, by the acceptance thereof, agrees to the provisions
of the Trust Securities Guarantee, including the subordination provisions
therein.
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ARTICLE 9
TERMINATION AND LIQUIDATION OF THE TRUST
Section 9.01. Dissolution of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy, insolvency or dissolution of the Guarantor
or the Bank;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Company;
(iii) upon the entry of a decree of judicial dissolution of the
Company or the Trust;
(iv) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Trust
Securities;
(v) upon the election of the Regular Trustees, following the
occurrence and continuation of a Trust Special Event, pursuant to which
the Trust shall have been dissolved in accordance with the terms of the
Trust Securities and all of the Company Securities shall have been
distributed to the Holders in exchange for all of the Trust Securities;
(vi) before the issuance of any Trust Securities, with the consent
of all of the Regular Trustees and the Sponsor; or
(vii) with the consent of at least a Majority in liquidation amount
of Trust Securities, voting together as a single class;
provided that, if a claim has been made under the Trust Securities Guarantee,
the Trust shall not dissolve until (x) such claim has been satisfied and the
proceeds therefrom have been distributed to the Holders or (y) the Company
Securities have been distributed to the Holders pursuant to Section 9.02 hereof.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 9.01(a) and in accordance with Section 3810 of the Statutory Trust
Act, a Regular Trustee shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The Trust shall terminate upon the filing of the certificate of
cancellation pursuant to Section 9.01(b) and this Trust Agreement shall be of no
further force and effect, except as provided in Section 9.01(d).
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(d) The provisions of Section 3.09 and Article 11 shall survive the
termination of the Trust.
Section 9.02. Liquidation Distribution upon Termination and Dissolution of
the Trust.
(a) In the event of any voluntary or involuntary liquidation, dissolution,
winding up or termination of the Trust (each a "Trust Liquidation"), the Holders
on the date of the Trust Liquidation will be entitled to receive, out of the
assets of the Trust available for distribution to Holders after satisfaction of
the Trust's liabilities and creditors, Company Securities in an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of, with a
Dividend rate identical to the Dividend rate of, and accumulated and unpaid
Dividends equal to accumulated and unpaid Dividends on, such Trust Securities
the ("Trust Liquidation Distribution") on a Pro Rata basis (subject to Section
9.02(b) below) in exchange for such Trust Securities.
(b) The Holders of the Trust Common Securities will be entitled to receive
distributions upon any such Trust Liquidation Pro Rata with the Holders of the
Trust Preferred Securities except that upon the occurrence and during the
continuance of an event of default under the Intercompany Securities, the Trust
Securities Guarantee or the Company Securities Guarantee, the Trust Preferred
Securities shall have a preference over the Trust Common Securities with regard
to such distributions.
ARTICLE 10
TRANSFER OF INTERESTS
Section 10.01. Transfer of Trust Securities.
(a) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Trust Agreement and
in the terms of the Trust Securities. To the fullest extent permitted by
applicable law, any transfer or purported transfer of any Trust Security not
made in accordance with this Trust Agreement shall be null and void. The Trust
Common Securities Owner, as the initial Holder of the Trust Common Securities,
shall have the right to transfer the Trust Common Securities to the Guarantor,
the Bank or any one or more Qualified Subsidiaries. No Person other than the
Bank, Holding, [the Trust Common Securities Owner] or one or more Qualified
Subsidiaries is permitted to own the Trust Common Securities.
(b) Subject to this Article 10, Trust Preferred Securities shall be freely
transferable.
Section 10.02. Transfer of Certificates. The Property Trustee shall
provide for the registration of Certificates and of transfers of Certificates,
which
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will be effected without charge but only upon payment (with such indemnity as
the Regular Trustees may require) in respect of any tax, fee, assessment or
other government charges that may be imposed in relation to it. Upon surrender
for registration of transfer of any Certificate, the Property Trustee shall
cause one or more new Certificates to be issued in the name of the designated
transferee or transferees. Every Certificate surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Property Trustee. A transferee
of a Certificate shall be entitled to the rights and be subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Trust Agreement.
Section 10.03. Deemed Security Holders. The Trustees may treat the Person
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole Holder of such Certificate and of the Trust Securities
represented by such Certificate for purposes of receiving Dividends and for all
other purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the Trust
Securities represented by such Certificate on the part of any other Person,
whether or not the Trust shall have actual or other notice thereof.
Section 10.04. Book-entry Interests. The Trust Preferred Securities
Certificates, on original issuance, will be issued in the form of one or more
fully registered, global Trust Preferred Security Certificates (each a "Global
Certificate"), to be deposited with a custodian for DTC, the initial Clearing
Agency, by, or on behalf of, the Trust. Such Global Certificates shall initially
be registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of DTC, and no Trust Preferred Security Beneficial Owner will
receive a definitive Trust Preferred Security Certificate representing such
Trust Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 10.07. Unless and until definitive,
fully registered Trust Preferred Security Certificates (the "Definitive Trust
Preferred Security Certificates") have been issued to the Trust Preferred
Security Beneficial Owners pursuant to Section 10.07:
(a) the provisions of this Section 10.04 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the Clearing
Agency for all purposes of this Trust Agreement (including the payment of
Dividends on the Global Certificates and receiving approvals, votes or consents
hereunder) as the Holder of the Trust Preferred Securities and the sole Holder
of the Global Certificates and shall have no obligation to the Trust Preferred
Security Beneficial Owners;
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(c) to the extent that the provisions of this Section 10.04 conflict with
any other provisions of this Trust Agreement, the provisions of this Section
10.04 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Trust Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants, and the Clearing Agency shall receive and transmit payments of
Dividends on the Global Certificates to such Clearing Agency Participants. The
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants; provided, that solely for the purposes of determining whether the
Holders of the requisite amount of Trust Preferred Securities have voted on any
matter provided for in this Trust Agreement, so long as Definitive Trust
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be fully protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Trust Preferred Security Beneficial Owners' votes or assigning
the right to vote on any matter to any other Persons either in whole or in part.
Section 10.05. Notices to Clearing Agency. Whenever a notice or other
communication to the Trust Preferred Security Holders is required under this
Trust Agreement, unless and until Definitive Trust Preferred Security
Certificates shall have been issued to the Trust Preferred Security Beneficial
Owners pursuant to Section 10.07, the Regular Trustees shall give all such
notices and communications specified herein to be given to the Trust Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Trust Preferred Security Beneficial Owners.
Section 10.06. Appointment of Successor Clearing Agency. If any Clearing
Agency elects to discontinue its services as securities depositary with respect
to the Trust Preferred Securities, the Regular Trustees shall use their best
efforts to appoint a successor Clearing Agency with respect to such Trust
Preferred Securities.
Section 10.07. Definitive Trust Preferred Security Certificates. If (a) a
Clearing Agency notifies the Trust that it is unwilling or unable to continue
its services as securities depositary with respect to the Trust Preferred
Securities and a successor Clearing Agency is not appointed within 90 days after
such discontinuance pursuant to Section 10.06, (b) the Regular Trustees elect
after consultation with the Sponsor to terminate the book-entry system through
the Clearing Agency with respect to the Trust Preferred Securities, (c) a
Clearing Agency has ceased to be a clearing agency registered under the Exchange
Act or (d) there shall have occurred and be continuing an Event of Default or
any event which after notice or lapse of time or both would be an Event of
Default under either of the Guarantees, then:
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(i) Definitive Trust Preferred Security Certificates shall be
prepared by the Property Trustee on behalf of the Trust with respect to
the Trust Preferred Securities; and
(ii) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Property Trustee
shall cause Definitive Trust Preferred Security Certificates to be
delivered to Trust Preferred Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the Trustees nor the
Trust shall be liable for any delay in delivery of such instructions and
each of them may conclusively rely on and shall be fully protected in
relying on, said instructions of the Clearing Agency. The Definitive Trust
Preferred Security Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Property Trustee, as evidenced by its execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Property Trustee may deem appropriate, or
as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange
on which Trust Preferred Securities may be listed, or to conform to usage.
Section 10.08. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificates should be surrendered to the Property Trustee, or if
the Property Trustee shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Property Trustee such security or indemnity as may be required by them to
keep each of them harmless, then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, the Property Trustee on
behalf of the Trust shall execute and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 10.08, the Property Trustee may require the payment of a sum sufficient
to cover any tax, fee, assessment or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in
the relevant Trust Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE 11
LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES,
TRUSTEES OR OTHERS
Section 11.01. Liability.
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(a) Except as expressly set forth in this Trust Agreement, the Trust
Securities Guarantee and the terms of the Trust Securities, the Sponsor and the
Trustees shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which shall be made
solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) The Holders of the Trust Common Securities shall be liable for all of
the debts and obligations of the Trust (other than obligations to the Holders in
their capacities as Holders) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act, the Holders of
the Trust Preferred Securities shall be entitled to the same limitation of
personal liability extended to shareholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
Section 11.02. Exculpation.
(a) No ABN AMRO Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such ABN AMRO Indemnified Person in good faith on behalf of the Trust
and in a manner such ABN AMRO Indemnified Person reasonably believed to be
within the scope of the authority conferred on such ABN AMRO Indemnified Person
by this Trust Agreement or by law, except that a ABN AMRO Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
ABN AMRO Indemnified Person's gross negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in conclusively relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Dividends to Holders of Trust Securities might properly be paid.
Section 11.03. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to
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any other Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other Covered Person for
its 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 an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Trust Agreement
or by applicable law.
Section 11.04. Indemnification.
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(a) (i) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless any ABN AMRO Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a ABN AMRO Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the ABN AMRO
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Guarantor shall indemnify, to the fullest extent permitted
by law, any ABN AMRO Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in
its favor by reason of the fact that he is or was a ABN AMRO Indemnified
Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such ABN AMRO Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a ABN AMRO Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 11.04(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the fullest
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 11.04(a) (unless ordered by a court) shall be made by the
Guarantor only as authorized in the specific case upon a determination
that indemnification of the ABN AMRO Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a Quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a Quorum is not obtainable, or, even if obtainable, if a
Quorum of disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion, or (3) by the Holder of the Trust Common
Securities.
(v) Expenses (including attorneys' fees) incurred by a ABN AMRO
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 11.04(a) shall be paid by the Guarantor in advance of
the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such ABN AMRO Indemnified Person to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Guarantor as authorized in this Section
11.04(a). Notwithstanding the foregoing, no advance shall be made by the
Guarantor if a determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a Quorum of disinterested Regular
Trustees, (ii) if such a Quorum is not obtainable, or, even if obtainable,
if a Quorum of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Holder of the Trust Common
Securities, that, based upon the facts known to the Regular Trustees,
counsel or the Holder of the Trust Common Securities at the time such
determination is made, such ABN AMRO Indemnified Person acted in bad faith
or in a manner that such person did not believe to be in or not opposed to
the best interests of the Trust, or, with respect to any criminal
proceeding, that such ABN AMRO Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Regular Trustees, independent
legal counsel or the Holder of the Trust Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
to the Holders of the Trust Common Securities.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 11.04(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors of the
Guarantor or Holders of the Trust Common Securities or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this
Section
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11.04(a) shall be deemed to be provided by a contract between the
Guarantor and each ABN AMRO Indemnified Person who serves in such capacity
at any time while this Section 11.04(a) is in effect. Any repeal or
modification of this Section 11.04(a) shall not affect any rights or
obligations then existing.
(vii) The Guarantor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a ABN AMRO Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Guarantor would have the power to indemnify him against such liability
under the provisions of this Section 11.04(a).
(viii) For purposes of this Section 11.04(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is
or was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the
same position under the provisions of this Section 11.04(a) with respect
to the resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 11.04(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a ABN AMRO Indemnified Person and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(b) The Guarantor agrees to indemnify the (i) Property Trustee (including
any predecessor Property Trustee), (ii) the Delaware Trustee (including any
predecessor Delaware Trustee), (iii) any Affiliate of the Property Trustee or
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or willful misconduct on the
part of the Fiduciary Indemnified Person arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim, action or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 11.04(a)(iv) shall survive
the satisfaction and discharge of this Trust Agreement.
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Section 11.05. Outside Businesses.
Any Covered Person, the Sponsor, the Guarantor, the Delaware Trustee and
the Property 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. No Covered Person, the Sponsor, the
Guarantor, the Delaware Trustee, nor the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee and
the Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of Holders
of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 12
ACCOUNTING
Section 12.01. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year,
or such other year as is required by the Code or the Treasury Regulations.
Section 12.02. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the Regular
Trustees.
(b) Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Trust Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
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(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders, any annual United States federal income tax information
statement required by the Code, containing such information with regard to the
Trust Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall use commercially
reasonable efforts to deliver any such statements within 30 days after the end
of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and timely filed
with the appropriate taxing authority, an annual United States federal income
tax return on Form 1041 or other applicable form or statement under United
States federal income tax law, and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
Section 12.03. Banking.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Company Securities held by the Property Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Account.
Section 12.04. Withholding; Additional Amounts.
Any and all payments by the Trust in respect of the Trust Securities shall
be made without withholding or deduction for or on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature,
imposed or levied by or on behalf of The Netherlands or, during any period any
Intercompany Security that is not an Initial Intercompany Security is
outstanding, the jurisdiction of residence of any obligor on such Intercompany
Security (each a "Relevant Jurisdiction"), or any authority therein or thereof
having power to tax (collectively, "Relevant Tax"). If the Trust shall be
required by law to deduct such Relevant Tax from or in respect of any sum
payable hereunder the Trust shall pay, as further dividends, such additional
amounts as may be necessary in order that the net amount received by the Holders
after such withholding or deduction will equal the amount which would have been
received in respect of the Trust Securities in the absence of such withholding
or deduction ("Additional Amounts"), except that no such Additional Amounts
shall be payable to a Holder (or to a third party on such Holder's behalf) with
respect to any Trust Securities (i) to the extent that such Relevant Tax is
imposed or levied by virtue of such Holder (or the beneficial owner of such
Trust Securities) having some connection with the Relevant Jurisdiction, other
than being a Holder (or beneficial owner of such Trust Securities), (ii) to the
extent that such the Relevant Tax is imposed or
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levied by virtue of such Holder (or beneficial owner) not having made a Trust
Agreement of non-residence in, or other lack of connection with, the Relevant
Jurisdiction or any similar claim for exemption, if the Guarantor or its agent
has provided the beneficial owner of such Trust Securities or its nominee with
at least 60 days' prior written notice of any opportunity to make such a Trust
Agreement or claim, or (iii) where such withholding or deduction is imposed on a
payment to an individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the conclusions of the
ECOFIN Council meeting of 26-27 November 2000 or any law implementing or
complying with, or introduced in order to conform to, [or substantially similar
to] such Directive.
ARTICLE 13
AMENDMENTS AND MEETINGS
Section 13.01. Amendments.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Trust Securities, this Trust Agreement may only be
amended by a written instrument approved and executed by the Regular Trustees
(or, if there are more than two Regular Trustees a majority of the Regular
Trustees), and, in certain circumstances, the Property Trustee and the Delaware
Trustee;
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee and the Delaware Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Trust Agreement
(including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property Trustee
or the Delaware Trustee, the Property Trustee or the Delaware Trustee, as
the case may be, shall have first received an opinion of counsel (who may
be counsel to the Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Trust Agreement (including the
terms of the Trust Securities); or
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to be classified for purposes of
United States federal income taxation as a grantor trust;
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(B) if the Company is a Capital Funding LLC, cause the Company
to be classified for purposes of United States federal income tax as
an association or a publicly traded partnership taxable as a
corporation;
(C) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act;
(D) cause the Trust or the Company to be required to register
under the 1940 Act; or
(E) permit the Contingent Distribution to be made to anyone
other than the Holders in accordance with Section 7.01(a).
(c) In the event the consent of the Property Trustee, as the record holder
of the Company Securities, is required under the Company Securities Rights
Agreement with respect to any amendment, modification or termination of the
Company Securities Rights Agreement or the Company Securities, or under either
of the Guarantees with respect to any amendment, modification or termination of
such Guarantee, the Property Trustee shall request the direction of the Holders
with respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in liquidation amount of the Trust Securities voting together as a single class;
provided, however, that where a consent under the Company Securities Rights
Agreement or the Company Securities Guarantee would require the consent of a
Super Majority of the record holders of Company Securities, the Property Trustee
may only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Trust Securities which the relevant
Super Majority represents of the aggregate liquidation amount of the Company
Securities outstanding; provided, further, that the Property Trustee shall not
be obligated to take any action in accordance with the directions of the Holders
under this Section 13.01(c) unless the Property Trustee has been provided with
an opinion of independent tax counsel to the effect that as a result of such
action, the Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes;
(d) At such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would (i) materially adversely affect the
powers, preferences or special rights of the Trust Securities whether by way of
amendment to this Trust Agreement or otherwise or (ii) provide for the
dissolution, winding up or termination of the Trust other than pursuant to the
terms of this Trust Agreement, may be effected only with the approval of the
Holders of at least a Majority in liquidation amount of the Trust Securities
affected thereby; provided, that if any amendment or proposal referred to in
clause (i) hereof would adversely affect only the Trust Preferred Securities or
the Trust Common Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
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effective except with the approval of a Majority in liquidation amount of such
class of Trust Securities;
(e) Article 7, Section 11.01(c) and this Section 13.01 shall not be
amended without the consent of all of the Holders;
(f) Article 5 shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Trust Common Securities;
(g) The rights of the Holders of the Trust Common Securities under Article
6 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Trust Common Securities; and
(h) Notwithstanding Section 13.01(c), this Trust Agreement may be amended
without the consent of the Holders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this Trust Agreement
that may be defective or inconsistent with any other provision of this
Trust Agreement;
(iii) to add to the covenants, restrictions or obligations of the
Guarantor or the Common Securities Holder;
(iv) to conform to any change in the 1940 Act or written change in
interpretation or application of the rules and regulations promulgated
thereunder by any legislative body, court, government agency or regulatory
authority;
(v) to conform to any change in the Trust Indenture Act or written
change in interpretation or application of the rules and regulations
promulgated thereunder by any legislative body, court, government agency
or regulatory authority; or
(vi) to modify, eliminate or add to any provision of this Trust
Agreement to such extent as may be necessary or desirable;
provided that such amendments do not have a material adverse effect on the
rights, preferences or privileges of the Holders.
Section 13.02. Meetings of the Holders of Trust Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Trust Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the Trust
Securities) to consider and act on any matter on which Holders of such class
62
of Trust Securities are entitled to act under the terms of this Trust Agreement,
the terms of the Trust Securities, the Company Securities Rights Agreement, the
rules of any stock exchange on which the Trust Preferred Securities are listed
or admitted for trading, the Statutory Trust Act or other applicable law. The
Regular Trustees shall call a meeting of the Holders of such class if directed
to do so by the Holders of at least 10% in liquidation amount of such class of
Trust Securities. Such direction shall be given by delivering to the Regular
Trustees one or more requests in a writing stating that the signing Holders wish
to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders calling a meeting shall specify in writing
the Certificates held by the Holders exercising the right to call a meeting and
only those Trust Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least 7 days and not more than 60 days
before the date of such meeting. Any action that may be taken at a meeting
of the Holders may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders owning not less
than the minimum amount of Trust Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at which
all Holders having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Holders for
the purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Regular Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No
proxy shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders were shareholders
of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the Regular
Trustees or by such other Person as the Regular Trustees may designate;
and
63
(iv) unless the Statutory Trust Act, this Trust Agreement, the terms
of the Trust Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Trust Preferred Securities are then listed
for trading, otherwise provide, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders, waiver of any such
notice, action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE 14
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 14.01. Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Trust Agreement, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a corporation with trust powers, duly
organized, validly existing and in good standing under the laws of [state of
incorporation], with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Trust Agreement;
(b) The execution, delivery and performance by the Property Trustee of the
Trust Agreement has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Trust Agreement has been duly executed and
delivered by the Property Trustee;
(c) The execution, delivery and performance of the Trust Agreement by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Incorporation or By-laws of the Property Trustee;
(d) The Property Trustee, pursuant to this Trust Agreement, shall hold
legal title to, and a valid ownership interest on behalf of the Holders of the
Trust Securities, in the Company Securities and agrees that, except as expressly
provided or contemplated by this Agreement, it will not create, incur, assume,
or suffer to exist any mortgage, pledge, hypothecation, encumbrance, lien or
other charge or security interest upon the Company Securities.
Section 14.02. Representations and Warranties of Delaware Trustee.
64
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Trust Agreement, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Trust Agreement;
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Trust Agreement.
(c) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
ARTICLE 15
MISCELLANEOUS
Section 15.01. Notices.
All notices provided for in this Trust Agreement shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) If given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Trust Securities):
ABN AMRO Capital Funding Trust [ ]
c/o [Trust Common Securities Owner]
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Facsimile No.: [__________]
Attention: [NAME]
(b) If given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
other Trustees):
[ADDRESS]
65
(c) If given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Trust Securities and the other Trustees):
[ADDRESS]
(d) If given to the Holders of the Trust Common Securities, at the mailing
address of the [Trust Common Securities Owner] set forth below (or such other
address as the Holder of the Trust Common Securities may give notice of to the
Trust):
[ADDRESS]
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 15.02. Governing Law.
This Trust Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the internal laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 15.03. Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Trust Agreement shall be interpreted to further this intention of the
parties.
Section 15.04. Headings.
Headings contained in this Trust Agreement are inserted for convenience of
reference only and do not affect the interpretation of this Trust Agreement or
any provision hereof.
Section 15.05. Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
66
Sponsor, the Guarantor and the Trustees shall bind and inure to the benefit of
their respective successors and assigns, whether so expressed.
Section 15.06. Partial Enforceability.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 15.07. Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees and a duly authorized officer of the Sponsor
and the Guarantor to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
67
IN WITNESS WHEREOF, each of the undersigned has caused these presents to
be executed as of the day and year first above written.
Regular Trustees
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
[__], as Delaware Trustee
By:
-------------------------------
Name:
Title:
[__], as Property Trustee
By:
-------------------------------
Name:
Title:
[LaSalle Funding LLC, as Sponsor]
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
ABN AMRO CAPITAL FUNDING LLC [ ],
as [Depositor]
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Consented to by:
[ABN AMRO HOLDING N.V./ABN AMRO
BANK N.V.] as Guarantor
By:
-------------------------------
Name:
Title:
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Trust 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 ("DTC") or a nominee of DTC. This Trust Preferred
Security is exchangeable for Trust Preferred Securities registered in the name
of a person other than DTC or its nominee only in the limited circumstances
described in the Trust Agreement and no transfer of this Trust Preferred
Security (other than a transfer of this Trust Preferred Security as a whole by
DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC)
may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of DTC (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇), a New York
corporation, to the Trust or its agent for registration of transfer, exchange or
payment, and any Trust Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment hereon is made to Cede & Co. or such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
CUSIP No. ____________
Certificate No.
Certificate Evidencing Trust Preferred Securities
of
ABN AMRO CAPITAL FUNDING TRUST [ ]
[__] Noncumulative Guaranteed Trust Preferred Securities
(liquidation preference U.S. $[__] per Trust Preferred Security)
Guaranteed by [ABN AMRO Holding N.V.][ABN AMRO Bank N.V.]
ABN AMRO CAPITAL FUNDING TRUST [__], a statutory 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 undivided beneficial ownership interests in the assets of the Trust
designated the [__] Noncumulative Guaranteed Trust Preferred Securities
(liquidation amount $[__] per Trust Preferred Security) (the "Trust Preferred
Securities"). The Trust Preferred Securities are freely transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, powers, privileges, restrictions, preferences and other
terms and provisions of the Trust Preferred Securities represented hereby are
set forth in, issued under and shall in all respects be subject to the
provisions of the Amended and Restated Trust Agreement dated as of [__], as the
same may be amended from time to time (the "Trust Agreement"). Capitalized terms
used herein but not defined shall have the meaning given them in the Trust
Agreement. By accepting this certificate, the Holder hereby accepts the rights
under the Trust Securities Guarantee with respect to this Trust Preferred
Security, including the rights under Article 6:253 of the Dutch Civil Code,
which rights shall be transferred by operation of law under Article 6:251 of the
Dutch Civil Code to any subsequent Holder of this Trust Preferred Security. The
Holder is entitled to the benefits of the Trust Securities Guarantee to the
extent provided in such Guarantee. The Sponsor will provide a copy of the Trust
Agreement, the Trust Securities Guarantee and the Company Securities Rights
Agreement to a Holder without charge upon written request to the Trust at its
principal place of business.
THE TRUST PREFERRED SECURITIES ARE TRANSFERABLE ON THE BOOKS AND RECORDS
OF THE TRUST ONLY IN ACCORDANCE WITH THE TERMS OF THE DECLARATION.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and the Trust Securities Guarantee and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, the Trust has executed this certificate this __ day of
___.
ABN AMRO CAPITAL FUNDING TRUST [__]
By: [_____],
as Regular Trustee
By:
-----------------------------------
Name:
Title:
Guaranteed to the extent set forth
in the Trust Securities Guarantee
dated [__].
[ABN AMRO HOLDING N.V.][ABN AMRO
BANK N.V.]
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Authenticated by:
[__],
as Property Trustee
By:
-----------------------------
Name:
Title:
(See reverse for additional terms)
REVERSE OF SECURITY
Holders of Trust Preferred Securities shall be entitled to receive cash
distributions at a rate per annum of [__] of the stated liquidation preference
of $[__] per Trust Preferred Security. Dividends on the Trust Preferred
Securities will accumulate from the date of initial issuance or the last
Dividend Date (whichever is later) and will be payable [quarterly in arrears,
on [__], [__],[__] and [__]] of each year, commencing on [__] if, as and when
funds available for payment are held by the Property Trustee in the Property
Account. Dividends on the Trust Preferred Securities will not be cumulative. If
the Trust Preferred Securities are in the form of a Global Certificate, the
record date for payment of Dividends will be one Business Day prior to the
relevant Dividend Date. If the Trust Preferred Securities are in the form of
Definitive Trust Preferred Security Certificates, the record date for payment
of Dividends shall be the 15th day of the month in which the relevant Dividend
Date falls. In the event that any Dividend Date is not a Business Day, payment
of such Dividends shall be made on the next succeeding day which is a Business
Day (without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (without any
reduction of interest or other payments in respect of such early payment). The
amount of Dividends payable for any Dividend Period will be computed on the
basis of a 360-day year of twelve 30-day months, and for any Dividend Period
shorter than a three month period, on the basis of the actual number of days
elapsed. Amounts available to the Trust for Dividends to the holders of the
Trust Preferred Securities will be limited to payments received by the Trust
from the Company on the Company Securities (which payments shall include, but
not be limited to, Dividends made on the Company Securities pursuant to the
Company Securities Guarantee and the LLC Contingent Distribution, if
applicable) or from the Guarantor pursuant to the Trust Securities Guarantee
paid by the Guarantor to the Trust. Dividends on the Company Preferred
Securities will be paid only if, as and when declared in the sole discretion of
the Company or deemed declared under the Guarantees.
Upon a purchase of the Company Securities by the Company upon redemption
or otherwise, the proceeds from such purchase shall be simultaneously applied
Pro Rata to redeem Trust Securities having an aggregate liquidation amount equal
to the Company Securities so purchased or redeemed for an amount equal to $[__]
per Trust Security plus an amount equal to accumulated and unpaid Dividends or
such lesser amount as shall be received by the Trust in respect of the Company
Securities so purchased or redeemed as calculated by the Regular Trustees.
Holders will be given not less than 30 nor more than 60 days notice of such
redemption.
If fewer than all the outstanding Trust Securities are to be so redeemed,
the Trust Common Securities and the Trust Preferred Securities will be redeemed
Pro Rata.
If, at any time, a Trust Special Event shall occur and be continuing, the
Regular Trustees shall, within 90 days following the occurrence of such Trust
Special Event, elect to either (i) dissolve the Trust upon not less than 30 nor
more than 60 days' notice to the Holders and upon not less than 30 nor more than
60 days' notice to Euroclear and Cedel, after providing Euroclear and Cedel with
such information relating to such dissolution and the Company Securities, as
reasonably requested by either of them, with the result that, after satisfaction
of creditors, if any, of the Trust, Company Securities with an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of, with a
Dividend rate identical to the Dividend rate of, and accumulated and unpaid
Dividends equal to accumulated and unpaid Dividends on, and having the same
record date for payment as, the Trust Preferred Securities and the Trust Common
Securities outstanding at such time would be distributed on a Pro Rata basis to
the Holders of the Trust Preferred Securities and the Trust Common Securities in
liquidation of such Holders' interests in the Trust; provided, however, that, if
at the time there is available to the Trust the opportunity to eliminate, within
such 90-day period, the Trust Special Event by taking some Ministerial Action,
such as filing a form or making an election, or pursuing some other similar
reasonable measure which in the sole judgment of the Guarantor has or will cause
no adverse effect on the Trust, the Company, the Guarantor, the Common
Securities Holder or the Holders or beneficial owners of the Trust Securities
and will involve no material cost, the Trust will pursue such measure in lieu of
dissolution or (ii) cause the Trust Preferred Securities to remain outstanding,
provided that in the case of this clause (ii), the Guarantor shall pay any and
all expenses incurred by or payable by the Trust attributable to the Trust
Special Event.
This Trust Preferred Security and all rights hereunder and provisions
hereof shall be governed by and construed in accordance with the internal laws
of the State of Delaware without regard to principles of conflict of laws.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Preferred Security Certificate to:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:____________________________
Signature:_______________________
(Sign exactly as your name appears on the other side of this Trust
Preferred Security Certificate)
EXHIBIT A-2
THIS TRUST COMMON SECURITY IS NOT TRANSFERABLE EXCEPT TO ABN AMRO HOLDING N.V.,
ABN AMRO BANK N.V. (THE "BANK"), [LASALLE FUNDING LLC], OR ONE OR MORE OF ANY OF
THEIR SUBSIDIARIES WHICH ARE DEEMED TO BE "A COMPANY CONTROLLED BY THE PARENT
COMPANY" UNDER RULE 3a-5, AS AMENDED, OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED.
FORM OF TRUST COMMON SECURITY CERTIFICATE
CS-1
Certificate Evidencing Trust Common Securities
of
ABN AMRO CAPITAL FUNDING TRUST [ ]
[__] Trust Common Securities
(liquidation preference U.S. $[__] per Trust Common Security)
ABN AMRO CAPITAL FUNDING TRUST [ ], a statutory trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that [the Trust
Common Security Owner] (the "Holder") is the registered owner of [NUMBER] common
securities of the Trust representing undivided beneficial ownership interests in
the assets of the Trust designated the [__] Trust Common Securities (liquidation
amount $[__] per Trust Common Security) (the "Trust Common Securities"). The
designation, rights, powers, privileges, restrictions, preferences and other
terms and provisions of the Trust Common Securities represented hereby are set
forth in, issued under and shall in all respects be subject to the provisions of
the Amended and Restated Trust Agreement dated as of [__], as the same may be
amended from time to time (the "Trust Agreement"). Capitalized terms used herein
but not defined shall have the meaning given them in the Trust Agreement. The
Holder is entitled to the benefits of the Trust Securities Guarantee and the
Contingent Guarantee to the extent provided in each such Guarantee.
IN WITNESS WHEREOF, the Trust has executed this certificate this __ day of
___.
ABN AMRO CAPITAL FUNDING TRUST [ ]
By: [_______],
as Regular Trustee
By:
-----------------------------------
Name:
Title:
Guaranteed to the extent set forth
in the Trust Securities Guarantee
dated [__].
[ABN AMRO HOLDING N.V.][ABN AMRO
BANK N.V.]
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Acknowledged by:
[__],
as Property Trustee
By:
--------------------------
Name:
Title:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Preferred Security Certificate to:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:____________________________
Signature:_______________________
(Sign exactly as your name appears on the other side of this Trust
Preferred Security Certificate)
