EXHIBIT 2.4
AMENDED AND RESTATED TRUST AGREEMENT
OF
DTE ENERGY TRUST I
Dated as of January 15, 2002
CROSS REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a) ......................................................................................................5.3(a)
310(b) ..............................................................................................5.3(c), 5.3(d)
310(c) ................................................................................................Inapplicable
311(a) ......................................................................................................2.2(b)
311(b) ......................................................................................................2.2(b)
311(c) ................................................................................................Inapplicable
312(a) ......................................................................................................2.2(a)
312(b) ......................................................................................................2.2(b)
312(c) ................................................................................................Inapplicable
313.............................................................................................................2.3
314(a) ............................................................................................2.4, 2.7, 3.6(e)
314(b) ................................................................................................Inapplicable
314(c) .........................................................................................................2.5
314(d) ................................................................................................Inapplicable
314(e) .........................................................................................................2.5
314(f) ................................................................................................Inapplicable
315(a) .............................................................................................3.9(b); 3.10(a)
315(b) ......................................................................................................2.7(a)
315(c) ......................................................................................................3.9(a)
315(d) ......................................................................................................3.9(b)
316(a) .........................................................................................................2.6
316(b) .........................................................................................................2.6
316(c) ......................................................................................................3.6(e)
317(a) ......................................................................................................3.8(h)
317(b) ..............................................................................................3.8(c); 7.2(a)
318..........................................................................................................2.1(c)
------------------------
(1) This Cross-Reference Table does not constitute part of the
Agreement and shall not have any bearing upon the interpretation of any
of its terms or provisions.
Table of Contents
Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.....................................................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application................................................................9
Section 2.2 Lists of Holders of Securities..................................................................9
Section 2.3 Reports by the Property Trustee................................................................10
Section 2.4 Periodic Reports to Property Trustee...........................................................10
Section 2.5 Evidence of Compliance With Conditions Precedent...............................................10
Section 2.6 Events of Default; Waiver......................................................................10
Section 2.7 Event of Default; Notice.......................................................................12
ARTICLE III
ORGANIZATION
Section 3.1 Name...........................................................................................13
Section 3.2 Office.........................................................................................13
Section 3.3 Purposes.......................................................................................13
Section 3.4 Authority......................................................................................14
Section 3.5 Title to Property of the Trust.................................................................14
Section 3.6 Powers and Duties of the Administrative Trustees...............................................14
Section 3.7 Prohibition of Actions by the Trust and the Trustees...........................................17
Section 3.8 Powers and Duties of the Property Trustee......................................................18
Section 3.9 Certain Duties and Responsibilities of the Property Trustee....................................20
Section 3.10 Certain Rights of the Property Trustee.........................................................22
Section 3.11 Delaware Trustee...............................................................................24
Section 3.12 Not Responsible for Recitals or Issuance of Securities.........................................24
Section 3.13 Duration of Trust..............................................................................25
Section 3.14 Mergers........................................................................................25
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities........................................................27
Section 4.2 Covenants of the Sponsor.......................................................................27
Section 4.3 Rights and Responsibilities of the Sponsor.....................................................27
Section 4.4 Right to Proceed...............................................................................28
Section 4.5 Expenses.......................................................................................28
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.............................................................................29
Section 5.2 Delaware Trustee...............................................................................29
Section 5.3 Property Trustee; Eligibility..................................................................30
Section 5.4 Certain Qualifications of Administrative Trustees and Delaware Trustee Generally...............30
Section 5.5 Administrative Trustees........................................................................31
Section 5.6 Appointment; Removal and Resignation of Trustees...............................................31
Section 5.7 Vacancies Among Trustees.......................................................................33
Section 5.8 Effect of Vacancies............................................................................33
Section 5.9 Meetings.......................................................................................33
Section 5.10 Delegation of Power............................................................................34
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Section 5.11 Merger, Conversion, Consolidation or Succession to Business....................................34
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions..................................................................................34
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities........................................................35
Section 7.2 Paying Agent and Registrar.....................................................................38
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust...........................................................................39
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.........................................................................40
Section 9.2 Transfer or Exchange of Certificates...........................................................40
Section 9.3 Deemed Security Holders........................................................................41
Section 9.4 Book Entry Interests...........................................................................41
Section 9.5 Notices to Clearing Agency.....................................................................42
Section 9.6 Appointment of Successor Clearing Agency.......................................................42
Section 9.7 Definitive Trust Preferred Security Certificates...............................................42
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates..............................................43
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability......................................................................................43
Section 10.2 Exculpation....................................................................................44
Section 10.3 Fiduciary Duty.................................................................................44
Section 10.4 Indemnification................................................................................45
Section 10.5 Outside Businesses.............................................................................48
Section 10.6 Trustees' Fees and Expenses....................................................................48
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year....................................................................................48
Section 11.2 Certain Accounting Matters.....................................................................48
Section 11.3 Banking........................................................................................49
Section 11.4 Withholding....................................................................................49
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.....................................................................................50
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent...............................52
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee.............................................53
Section 13.2 Representations and Warranties of Delaware Trustee.............................................54
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices........................................................................................55
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Section 14.2 Governing Law..................................................................................56
Section 14.3 Intention of the Parties.......................................................................56
Section 14.4 Headings.......................................................................................56
Section 14.5 Successors and Assigns.........................................................................56
Section 14.6 Partial Enforceability.........................................................................56
Section 14.7 Entire Agreement...............................................................................57
Section 14.8 Remedies.......................................................................................57
Section 14.9 Counterparts...................................................................................57
EXHIBIT A Terms and Conditions of Securities
EXHIBIT A-1 Form of Trust Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
iii
AMENDED AND RESTATED
TRUST AGREEMENT
OF
DTE ENERGY TRUST I
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated
and effective as of January 15, 2002, among the Trustees (as defined herein),
for the benefit of the Holders (as defined herein), and the Sponsor (as defined
herein).
WHEREAS, certain of the Trustees and the Sponsor created DTE
Energy Trust I (the "Trust"), a Delaware business trust under the Business Trust
Act (as defined herein), pursuant to a Trust Agreement dated as of November 28,
2001 (the "Original Agreement"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on November 29, 2001;
WHEREAS, prior to the date hereof, no Securities (as defined
herein) have been issued);
WHEREAS, all of the Trustees and the Sponsor, by this
Agreement, intend to amend and restate each and every term and provision of the
Original Agreement;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a Delaware business trust under the Business Trust Act
and to constitute this as the governing instrument of the Trust, in
consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions
Unless the context otherwise requires or unless specified in
an Exhibit hereto:
(a) each capitalized term used in this Agreement but not
defined in the preamble has the respective meaning assigned to it in this
Section 1.1;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement" or "this Agreement" are
to this Agreement as modified, supplemented or amended from time to time, and
include Exhibits to this Agreement;
(d) all references in this Agreement to Articles, Sections and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act, either directly
or by reference therein, has the same meaning when used in this Agreement unless
otherwise defined in this Agreement;
(f) a reference to the singular includes the plural and vice
versa;
(g) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation;"
(h) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation; and
(i) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York and of general circulation in The City of New York.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day that is not a Saturday, Sunday, a
day on which banking institutions in The City of New York are permitted or
required by any applicable law or executive order to close, or a day on which
the Corporate Trust Office of the Property Trustee or the Debenture Trustee is
closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C.ss.3801, et seq., as it may be amended from
time to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a Trust
Preferred Security Certificate.
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"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Trust Preferred Securities and in whose name or in the name
of a nominee of that organization shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the Trust
Preferred Securities. Unless otherwise specified in the Terms and Conditions,
DTC shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the "First Time of Delivery" under the
Underwriting Agreement.
"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, as
from time to time constituted and existing under the Exchange Act, or, if at any
time after the execution of this instrument such commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" has the meaning set forth in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement
dated as of the date hereof and executed and delivered by the Sponsor and The
Bank of New York, as trustee, for the benefit of the Holders of the Common
Securities, as such agreement may be modified, supplemented or amended from time
to time.
"Common Securities Agreement" means the Common Securities
Subscription Agreement, dated the date hereof, between the Trust and the
Sponsor.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security, which shall be prepared
by the Sponsor and a specimen of which shall be substantially in the form
attached hereto as Exhibit A-2.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee or any Affiliate of any Administrative Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property
Trustee in The City of New York at which the corporate trust business of the
Property Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Trustee Administration.
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"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 Securities.
"Creditor" has the meaning set forth in Section 4.5.
"Debenture Event of Default" means an event of default under
the Debentures.
"Debenture Issuer" means DTE Energy Company, a Michigan
corporation, or any successor entity, in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture with respect to the
Debentures until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures" means the debt securities to be purchased by the
Trust specified in the Terms and Conditions.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or
more Authorized Officers of that Person.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" has the meaning set forth in the Terms and
Conditions.
"DTC" means The Depository Trust Company or any successor
entity.
"Event of Default" means a Debenture Event of Default has
occurred and is continuing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" means (a) the Property Trustee,
(b) the Delaware Trustee, (c) any Affiliate of the Property Trustee or the
Delaware Trustee, and (d) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" or "holder" means a Person in whose name a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
4
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture specified in the Terms and
Conditions, between the Debenture Issuer and the Debenture Trustee under which
the Debentures are issued, as such indenture may be modified, supplemented or
amended from time to time, and includes any indenture supplemental thereto with
respect to the Debentures.
"Investment Company" means an entity required to register as
an investment company under the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount" with respect to Securities of
any class means, except as provided elsewhere in this Agreement or by the Trust
Indenture Act, more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
any accrued and unpaid Distributions to the date upon which the voting or
written consent percentages are determined) of all outstanding Securities of
such class.
"Officers' Certificate" means, with respect to (A) the
Sponsor, a certificate signed by the Chairman of the Board, a Vice Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Sponsor and (B) any other Person, a certificate signed by any two Authorized
Officers of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
comply with Section 314 of the Trust Indenture Act and shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individuals, such condition or covenant has been complied with.
"Outstanding," with respect to any Securities, means, as of
the date of determination, all Securities theretofore executed and delivered
under this Agreement, except:
5
(a) Trust Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for cancellation or Common
Securities theretofore cancelled by an Administrative Trustee or delivered to
the Administrative Trustees for cancellation;
(b) Securities for whose payment, repayment or redemption
money in the necessary amount and currency has been theretofore deposited with
the Property Trustee or any Paying Agent for the Holders of such Securities,
provided that if such Securities are to be repaid or redeemed, notice of such
repayment or redemption has been duly given pursuant to this Agreement;
(c) Securities which have been paid or in exchange for or in
lieu of which other securities have been executed and delivered pursuant to this
Agreement; and
(d) if the Securities are convertible or exchangeable into
other securities or other property, Securities converted or exchanged as
contemplated by this Agreement if such other securities have or other property
has been either (i) delivered to the Holders of such Securities in accordance
with this Agreement or (ii) deposited with and are held by the Property Trustee
or any Paying Agent in trust for the Holders of such Securities in accordance
with this Agreement, provided in the case of this clause (ii) that any
applicable notice of conversion or exchange has been duly given to the Holders
thereof pursuant to this Agreement;
provided, however, that in determining whether the Holders of the requisite
liquidation amount of outstanding Trust Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Trust Preferred Securities owned by the Sponsor or any Administrative Trustee or
any Affiliate of the Sponsor or any Administrative Trustee shall be disregarded
and deemed not to be outstanding, except that (i) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Trust Preferred
Securities that such Trustee actually knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of the
outstanding Trust Preferred Securities are owned by the Sponsor, one or more of
the Trustees and/or any such Affiliate. Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Trust Preferred Securities and
that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Paying Agent" has the meaning set forth in Section 7.2(a).
"Payment Amount" has the meaning set forth in Section 6.1.
"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 Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
6
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Quorum" means, with respect to the Administrative Trustees, a
majority of the Administrative Trustees or, if there are only two Administrative
Trustees, both of them or, if there is only one Administrative Trustee, such
Person.
"Registrar" has the meaning set forth in Section 7.2(b).
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the Property Trustee's obligations under this
Agreement 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" means the Common Securities and the Trust
Preferred Securities.
"Securities Guarantees" means the Common Securities Guarantee
and the Trust Preferred Securities Guarantee.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means DTE Energy Company, a Michigan corporation, or
any successor entity, in its capacity as sponsor of the Trust.
"State" means any of the 50 states in the United States or the
District of Columbia.
"Subordinated Debenture Agreement" means the Subordinated
Debenture Purchase Agreement, dated the date hereof, between the Sponsor and the
Trust
"Successor Delaware Trustee" has the meaning set forth in
Section 5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"10% in liquidation amount" with respect to either the Common
Securities or the Trust Preferred Securities means, except as provided elsewhere
in this Agreement or by the Trust Indenture Act, 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus any accrued and unpaid
7
Distributions to the date upon which the voting percentages are determined) of
all such outstanding Common Securities or Trust Preferred Securities.
"Terms and Conditions" means the terms and conditions of the
Common Securities and the Trust Preferred Securities in the form attached hereto
as Exhibit A.
"Trustee" or "Trustees" means each Person who has signed this
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.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trust Preferred Security" has the meaning set forth in
Section 7.1(a).
"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, which shall be prepared by the Sponsor
and a specimen of which shall be substantially in the form attached hereto as
Exhibit A-1.
"Trust Preferred Securities Guarantee" means the guarantee
agreement dated as of the date hereof executed and delivered by the Sponsor and
The Bank of New York, as trustee, for the benefit of the Holders, as such
agreement may be modified, supplemented or amended from time to time.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Property Trust Account, and (c) all proceeds and
rights in respect of the foregoing or any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to this
Agreement.
"Underwriting Agreement" means the underwriting agreement for
the offering and sale of Trust Preferred Securities, including any amendments or
supplements thereto, and "Underwriters" means the underwriters party to the
Underwriting Agreement.
8
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by ss.ss.310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) Any application of the Trust Indenture Act to this
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) In accordance with ss.312(a) of the Trust Indenture Act,
the Administrative Trustees, on behalf of the Trust, shall provide to the
Property Trustee:
(i) within 14 days after each record date for payment of
Distributions or such other dates as are set forth in the Terms and
Conditions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such date, provided that the Administrative
Trustees, on behalf of the Trust, shall not be obligated to provide
such List of Holders at any time that the Property Trustee is the
Registrar or the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Administrative
Trustees on behalf of the Trust; and
(ii) at any other time, within 30 days of receipt by the
Trust of a written request by the Property Trustee 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 the Lists of Holders given to it or which it receives in
the capacity as Paying Agent or Registrar (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 ▇▇.▇▇. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
9
Section 2.3 Reports by the Property Trustee.
Within 60 days after June 15 of each year, commencing with the
June 15 that first occurs following the issuance of the Securities, the Property
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by ss.313 of the Trust Indenture Act, if any, in the
form and in the manner provided by ss.313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of ss.313(d) of the
Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
The Administrative Trustees, on behalf of the Trust, shall
provide to the Property Trustee such documents, reports and information as
required by ss.314 of the Trust Indenture Act (if any) and the compliance
certificate required by ss.314 of the Trust Indenture Act in the form, in the
manner and at the times required by ss.314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance With Conditions Precedent.
Each of the Sponsor and the Administrative Trustees, on behalf
of the Trust, shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Agreement that
relate to any of the matters set forth in ss.314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
ss.314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
(a) The Holders of not less than a Majority in liquidation
amount of Trust Preferred Securities may, by vote or written consent, on behalf
of the Holders of all of the Trust Preferred Securities, waive any past Event of
Default in respect of the Trust Preferred Securities and its consequences,
provided that, if the corresponding Debenture Event of Default:
(i) is not waivable under the Debentures, the Event of
Default under this Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a "Super
Majority"), to be waived under the Indenture, the Event of Default
under this Agreement may only be waived by the vote of the relevant
Super Majority in liquidation amount of Holders of the Trust Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
ss.316(a)(1)(B) of the Trust Indenture Act and such ss.316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Debenture Event of Default shall cease to exist, and any Event of Default with
respect to the Trust Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Trust Preferred Securities or impair any right consequent thereon. Any
waiver by the Holders of the Trust Preferred Securities of an Event of Default
with respect to the Trust Preferred Securities shall also be deemed to
constitute a waiver
10
by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Agreement without any
further act, vote, or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property
Trustee, including the right to direct the Property Trustee to exercise the
remedies available to it under the Indenture as a holder of the Debentures;
provided, however, that (subject to the provisions of Section 3.9) the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee shall determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction or if the Property
Trustee, being advised by competent legal counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Property Trustee, in
good faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible Officers, shall
determine that the action or proceeding so directed would involve the Property
Trustee in personal liability.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote or consent, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
(i) is not waivable under the Debentures, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under this Agreement as provided elsewhere in this Section
2.6, the Event of Default under this Agreement shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under this Agreement as provided
below in this Section 2.6, such Event of Default under this Agreement
may only be waived by the vote or consent of the Holders of at least
the proportion in aggregate liquidation amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, that, notwithstanding (i) or (ii) above, each Holder of the
Common Securities shall be deemed to have waived any such Event of Default and
all Events of Default with respect to the Common Securities and its consequences
until all Events of Default with respect to the Trust Preferred Securities have
been cured, waived or otherwise eliminated, and until such Events of Default
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 this
Agreement and the Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of ss.ss.316(a)(1)(A) and 316 (a)(1)(B) and of the Trust
Indenture Act and such ▇▇.▇▇. 316(a)(1)(A) and 316 (a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
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Subject to the foregoing provisions of this Section 2.6(b), upon such waiver,
any such Debenture Event of Default shall cease to exist, and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of a Debenture Event of Default by the
Property Trustee at the direction of the Holders of the Trust Preferred
Securities constitutes a waiver of the corresponding Event of Default with
respect to the Trust Preferred Securities under this Agreement. Any waiver of a
Debenture Event of Default by the Property Trustee at the direction of the
Holders of the Trust Preferred Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of the corresponding Event of
Default under this Agreement with respect to the Common Securities for all
purposes of this Agreement without further act, vote or consent of the Holders
of the Common Securities. The foregoing provisions of this Section 2.6(c) shall
be in lieu of ss. 316(a)(1)(B) of the Trust Indenture Act and such
ss.316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Agreement and the Securities, as permitted by the Trust Indenture Act.
(d) The right of any Holder to receive payment of
Distributions in accordance with this Agreement and the terms of the Securities
on or after the respective payment dates therefor, or to institute suit for the
enforcement of any such payment on or after such payment dates, shall not be
impaired without the consent of each such Holder.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after a
Responsible Officer of the Property Trustee obtains actual knowledge of the
occurrence of a default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults known to the Property Trustee
other than defaults that have been cured or waived before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to include Debenture Events of Default, not including any periods of
grace provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on, or in the delivery of any cash, securities or
other property in exchange for or upon conversion or redemption of or otherwise
in accordance with the terms of, any Debenture or the Securities, 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 Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture;
(ii) any failure to deliver any cash, securities or
other property in exchange for or upon conversion or redemption of or
otherwise in accordance with the terms of the Debentures or the
Securities; and
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(iii) any default as to which the Property Trustee
shall have received written notice or of which a Responsible Officer of
the Property Trustee shall have actual knowledge.
(c) The Sponsor and the Administrative Trustee shall file
annually within 30 days after June 15 of each year, commencing with the June 15
that first occurs following the issuance of the Securities, with the Property
Trustee in accordance with Section 314(a)(4) of the Trust Indenture Act a
certification as to whether or not they are in compliance with all the
conditions applicable to them under this Agreement.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
The Trust is named "DTE Energy Trust I," as such name may be
modified from time to time in accordance with the Business Trust Act. The
Administrative Trustees shall give prompt written notice of any change in the
name of the Trust to the Delaware Trustee, the Property Trustee and the Holders
of the Securities. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
Section 3.2 Office.
The address of the principal office of the Trust is c/o DTE
Energy Company, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. On ten Business
Days prior written notice to the Property Trustee and Holders of the Securities,
the Administrative Trustees may designate another principal office.
Section 3.3 Purposes.
The exclusive purposes and functions of the Trust are and the
Trust shall have the power and authority (a) to issue and sell the Securities
and use the gross proceeds from such sale to acquire the Debentures and to own
property and conduct its business all as described herein and in the Prospectus
(as defined in the Underwriting Agreement) (b) to enter into and perform its
obligations under the Underwriting Agreement, the Subordinated Debenture
Agreement, the Common Securities Agreement, and each other document to which the
Trust is a party in connection herewith and (c) to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, execute mortgages or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust. It is the intent of the parties
to this Agreement for the Trust to be classified as a grantor trust for United
States federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the owners of the Trust Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income tax
purposes, and such owners will include directly in their gross income the
income, gain, deduction or loss of the Trust as if the Trust did not exist. By
the acceptance of this Agreement, neither the Trustees nor the Sponsor or the
Holders of the Trust Preferred Securities or Common Securities will take any
position for United States federal income tax purposes, or
13
permit the Trust to make any election, which is contrary to the classification
of the Trust as a grantor trust.
Section 3.4 Authority.
Subject to the limitations provided in this Agreement and to
the specific duties of the Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative 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 Agreement.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Trust
Property and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
A Holder shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the power, duty and
authority, which shall be exclusive except as otherwise set forth herein, and
are hereby authorized and directed to cause the Trust to engage in the following
activities:
(a) execute, deliver, issue and sell the Trust Preferred
Securities and the Common Securities in accordance with this Agreement;
provided, however, that the Trust may issue no more than one series of Trust
Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a simultaneous
issuance of both Trust Preferred Securities and Common Securities on each
Closing Date;
(b) in connection with the issue and sale of the Trust
Preferred Securities:
(i) assist in filing with the Commission any
registration statement and any prospectus relating to the registration
statement on Form S-3 prepared by the Sponsor, including any amendments
or supplements thereto, pertaining to the Trust Preferred Securities and
to take any other action relating to the registration and sale of the
Trust Preferred Securities under federal and state securities laws;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Trust Preferred
Securities in any State in which the Sponsor has determined to qualify
or register such Trust Preferred Securities for sale;
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(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for listing
or quotation of any Trust Preferred Securities;
(iv) execute and file with the Commission any
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Trust
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act;
(v) execute and enter into and deliver the
Underwriting Agreement providing for the sale of the Trust Preferred
Securities;
(vi) execute and deliver letters, documents or
instruments with DTC and other Clearing Agencies relating to the Trust
Preferred Securities;
(vii) execute and deliver the Common Securities
Agreement and the Subordinated Debenture Agreement;
(viii) execute the Terms and Conditions and attach
them to this Agreement; and
(ix) execute, enter into or file any other
instrument, agreement, certificate or other document negotiated or
prepared by the Sponsor on behalf of the Trust, and to take such other
action, in each case as the Administrative Trustees or any of them
deem necessary or incidental (and not otherwise covered by the power
of the other Trustees hereunder or under the Securities), in
connection with the issuance, the sale or the terms of any Securities
and the investment by the Trust in the Trust Property, including any
remarketing, auction or similar agreements;
(c) acquire the Debentures with the proceeds of the sale
of the Trust Preferred Securities and the Common Securities; provided, however,
that the Administrative Trustees shall cause legal title to the Debentures to be
acquired by the Trust on the Closing Date to be held of record in the name of
the Property Trustee for the benefit of the Trust and the Holders of the Trust
Preferred Securities and the Holders of Common Securities;
(d) give the Sponsor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in the Terms
and Conditions) or any event that, in accordance with this Agreement, may
require that a notice be sent to Holders, including events that may result in an
Event of Default, or any redemption, conversion or exchange of or deferral of
distributions on the Securities;
(e) establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss.316(c) of the Trust Indenture Act,
Distributions, voting rights, any repayments, any redemptions, any conversions
and any exchanges, and to issue relevant notices to the Holders of Trust
Preferred Securities and Holders of Common Securities as to such actions and
applicable record dates;
15
(f) take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of the Securities
and this Agreement;
(g) to the fullest extent permitted by law, 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 3.8(e) the Property Trustee has the exclusive power
to bring such Legal Action;
(h) 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;
(i) cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) give the certificate required by ss. 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Administrative Trustee;
(k) incur expenses that are necessary, appropriate,
convenient or incidental to carry out any of the purposes of the Trust;
(l) act as, or appoint another Person to act as, Registrar
and transfer agent for the Securities;
(m) take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Trust
Preferred Securities or to enable the Trust to effect the purposes for which the
Trust was created;
(n) take any action, not inconsistent with this Agreement
or with applicable law, that the Administrative Trustees determine in their
discretion to be necessary or incidental in carrying out the activities of the
Trust, including:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax purposes,
provided, in each case, that such action does not adversely affect the interests
of Holders;
16
(o) 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 on behalf of the Trust; and
(p) execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters which the Administrative Trustees deem necessary or incidental to the
foregoing.
The Administrative Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes of the
Trust set out in Section 3.3. None of the Administrative Trustees shall take any
action that is inconsistent with the purposes of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8. No permissive power or authority available to the Administrative
Trustees shall be construed to be a duty.
Any expenses incurred by the Administrative Trustees pursuant
to this Section 3.6 shall be reimbursed by the Sponsor.
The Administrative Trustees shall take all actions on behalf
of the Trust that are not specifically required by this Agreement to be taken by
any other Trustee.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees shall not cause
the Trust to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not and the Trustees shall not
cause the Trust to:
(i) invest any proceeds received by the Trust from
holding the Debentures or other Trust Property, but shall distribute all
such proceeds to Holders of Securities pursuant to the terms of this
Agreement and of the Securities;
(ii) acquire or vary any assets other than as
expressly provided herein;
(iii) possess Trust Property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness for
borrowed money, other than loans represented by the Debentures or other
Trust Property;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the Securities in any
way whatsoever;
(vi) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as provided in this
Agreement;
17
(vii) take or consent to any action that would
result in the placement of a lien on any Trust Property;
(viii) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other than
the Securities; or
(ix) other than as provided in this Agreement, (A)
direct or exercise any remedy, trust or power with respect to the
Debentures, or any other instrument or agreement constituting Trust
Property, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of or other amounts payable or other property
deliverable under the Debentures shall be due and payable, or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures, in the case of each of clauses (A) through (D), (x)
without the approval of a Majority in liquidation amount with respect to
the Securities or, where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, of each Holder of
Securities, and (y) unless the Trust shall have received an opinion of
nationally recognized independent tax counsel to the effect that the
Trust will not, as a result of such action, fail to be classified as a
grantor trust for such purposes.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Trust Property shall be owned
by and held of record in the name of the Property Trustee in trust for the
benefit of the Trust and the Holders of the Securities. The right, title and
interest of the Property Trustee to the Trust Property shall vest automatically
in each Person who may hereafter be appointed as Property Trustee in accordance
with Section 5.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Trust Property have been
executed and delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Trust Property to the Administrative Trustees or to
the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee) or, except in accordance with the provisions of this Agreement and the
Securities, any other Person.
(c) The Property Trustee shall:
(i) establish and maintain one or more segregated
non-interest bearing trust accounts (collectively, the "Property Trustee
Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Trust and the Holders and, upon the receipt of
funds in respect of the Trust Property, deposit such funds into the
Property Trust Account and, upon the receipt of funds distributed to the
Property Trustee in respect of the Trust Property held by the Property
Trustee, deposit such funds into the Property Trustee Account, and make
distributions of such funds out of the Property Trust Account to the
Holders of the Trust Preferred Securities and the Holders of the Common
Securities in accordance with the terms of this Agreement and the
Securities. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Agreement and the
Securities. The Property Trustee Account shall be one or more
18
accounts maintained with one or more banking institutions (which may
include the Property Trustee if it qualifies hereunder) the rating on
whose long-term unsecured indebtedness is rated at least "A" or above by
a "nationally recognized statistical rating organization," as that term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) upon receipt of any Trust Property on the
Closing Date and the receipt of any property other than funds
distributed to the Property Trustee in respect of Trust Property held by
the Property Trustee, hold such other property in safe keeping and make
distributions of such other property to the Holders of the Trust
Preferred Securities and the Holders of the Common Securities in
accordance with the terms of this Agreement and the Securities; and
(iii) engage in such ministerial activities as shall
be necessary or incidental to hold the Trust Property in accordance with
the provisions hereof and to effect distributions on and any redemption,
repayment, conversion or exchange of the Trust Preferred Securities or
the Common Securities and the distribution of all or any part of the
Trust Property to Holders in liquidation of the Trust or otherwise, in
each case in accordance with the terms of this Agreement and the
Securities.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the Property Trustee
pursuant to the terms of the Securities and this Agreement.
(e) Subject to Section 3.9(a), the Property Trustee shall
take any Legal Action which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Property Trustee has actual
knowledge or the Property Trustee's duties and obligations under this Agreement,
the Business Trust Act or the Trust Indenture Act; provided, however, that if
the Property Trustee fails to enforce its rights under this Agreement and the
Debentures after a Holder of Trust Preferred Securities has made a written
request, such Holder of Trust Preferred Securities may, to the fullest extent
permitted by applicable law and subject to the terms of this Agreement and the
Indenture, institute a legal proceeding against the Debenture Issuer without
first instituting any legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal of the Debentures on the date such interest
or principal is otherwise payable (including, in the case of repayment or
redemption, on the repayment or redemption date), and not during an authorized
Extension Period (as defined in the Terms and Conditions), or, if the Debentures
are exchangeable or convertible, the failure of the Debenture Issuer to convert
or exchange the Debentures into or for other property in accordance with the
terms thereof, then a Holder of Trust Preferred Securities may directly
institute a proceeding (a "Direct Action") for enforcement of payment or
delivery to such Holder of the principal of or interest on or other property
deliverable upon the exchange or conversion of Debentures having a principal
amount equal to the aggregate liquidation amount of the Trust Preferred
Securities of such holder on or after the due date specified in the Debentures
equal to the percentage of outstanding securities represented by such Holder's
Securities. In connection with such Direct Action, the rights of the Holders of
Common Securities will be subordinated to the rights of such Holders of Trust
19
Preferred Securities. Except as provided in the preceding sentences, the Holders
of Trust Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely dissolved and
wound up and the proceeds of the liquidation distributed to the Holders
of Securities and the Trust is terminated, in accordance with the terms
of the Securities and this Agreement; or
(ii) a successor Property Trustee has been
appointed and has accepted that appointment in accordance with Section
5.6 (a "Successor Property Trustee").
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of the Trust as holder of
Debentures under the Indenture and, if an Event of Default actually known to a
Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
the rights of the Trust as holder of the Debentures subject, in each case, to
the rights of the Holders pursuant to the terms of the Securities and this
Agreement.
(h) The Property Trustee shall be authorized to undertake
any actions set forth in ss. 317(a) of the Trust Indenture Act.
(i) Subject to this Section 3.8, the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
(j) For such time as the Property Trustee is the Paying
Agent, the Property Trustee may authorize one or more Persons to act as
additional Paying Agents and to make distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities. Any
such additional Paying Agent may be removed by the Property Trustee, at any
time, so long as the Property Trustee remains as Paying Agent and a successor
Paying Agent or additional Paying Agents may be (but are not required to be)
appointed at any time by the Property Trustee.
(k) The Property Trustee must exercise the powers set
forth in this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property Trustee shall
not take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
(l) The Property Trustee shall give prompt written notice
to the Holders of the Securities of any notice received by it from the Debenture
Issuer of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any
Event of Default and after the curing or waiver of all Events of Default that
may have occurred, shall undertake to perform
20
only such duties as are specifically set forth in this Agreement and no implied
covenants shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) 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 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 Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, its bad faith or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the express
provisions of this 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 Agreement,
and no implied covenants or obligations shall be read into
this 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 Agreement; provided, that 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 Agreement;
(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) 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 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 Agreement;
(iv) no provision of this 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
21
reasonably assured to it under the terms of this Agreement or if
indemnity reasonably satisfactory to the Property Trustee against such
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 Trust
Property and the Property Trustee Account shall be to deal with such
property in a manner that is similar to the manner in which the
Property Trustee deals with similar property for its fiduciary accounts
generally, subject to the protections and limitations on liability
afforded to the Property Trustee under this Agreement, the Business
Trust Act 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 Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it except as it may otherwise
agree in writing with the Sponsor; money held by the Property Trustee
need not be segregated from other funds held by it except in relation to
the Property Trustee Account maintained by the Property Trustee pursuant
to Section 3.8(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 Administrative Trustees or the
Sponsor with their respective duties under this Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
Section 3.10 Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(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 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 or the
Administrative Trustees contemplated by this Agreement shall be
sufficiently evidenced by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this
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 negligence or 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 or the Administrative Trustees;
22
(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 registration thereof;
(v) the Property Trustee may consult with
competent legal counsel or other competent experts and the advice or
written opinion of such counsel and experts with respect to legal
matters or advice within the scope of such legal counsel's 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 Sponsor or any of its Affiliates,
and may include any of its employees; and the Property Trustee shall
have the right at any time to seek instructions concerning the
administration of this 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
Agreement at the request or direction of any Holder, unless (A) such
Holder shall have provided to the Property Trustee reasonable security
and indemnity, reasonably satisfactory to the Property Trustee, against
the reasonable costs, expenses (including reasonable attorneys' fees and
expenses and the reasonable 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 obtained the legal opinions, if any, required by
the applicable provisions 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 an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Agreement;
(vii) the Property Trustee shall be under no
obligation to conduct an 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;
(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 of the
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to 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 Agreement, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
23
(x) whenever in the administration of this
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 (A) may request
instructions from the Holders (which instructions may only be given by
the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee under the
terms of the Securities in respect of such remedy, right or action), (B)
may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall be protected
in conclusively relying on or acting in accordance with such
instructions, provided that the Property Trustee shall not take any
action unless it shall have obtained the legal opinions required by the
applicable provisions of this Agreement;
(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement.
(b) No provision of this 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 other provision of this Agreement other
than Section 5.2, 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 Trustees (except as required under the Business Trust
Act) described in this Agreement. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of ss. 3807 of the Business Trust Act. In the event
that the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder, the Delaware Trustee shall be entitled to the
benefits of Section 3.9(b)(ii) and (viii) and Section 3.10. No implied covenants
or obligations shall be read into this Agreement against the Delaware Trustee.
Section 3.12 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities
shall be taken as the statements of the Sponsor, 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 thereof.
The Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
24
Section 3.13 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions hereof,
shall dissolve on February 1, 2037.
Section 3.14 Mergers.
(a) The Trust may not consolidate, amalgamate, merge or
convert with or into, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to, any
Person, except for the sole purpose of changing its domicile and as set forth in
Section 3.14(b) and (c).
(b) Subject to Section 3.14(a), the Trust may, at the
request of the Sponsor, with the consent of the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees and without
the consent of the Holders of the Trust Preferred Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge or convert with
or into, or be replaced by a trust organized as such under the laws of any
State; provided that:
(i) the successor entity (the "Successor Entity")
expressly assumes all of the obligations of the Trust under any
agreement to which the Trust is a party and either:
(A) expressly assumes all of the obligations
of the Trust under the 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 distributions of Trust
Property and payments upon liquidation, redemption, repayment
and otherwise and substitutes for the Common Securities other
securities having substantially the same terms as the Common
Securities (the "Successor Common Securities," and together
with the Successor Trust Preferred Securities, the "Successor
Securities"), so long as the Successor Common Securities rank
the same as the Common Securities rank with respect to
distributions of Trust Property and payments upon liquidation,
redemption, repayment and otherwise;
(ii) the Successor Entity has a trustee that
possesses substantially the same powers and duties as the Property
Trustee;
(iii) the Trust Preferred Securities or any
Successor Securities will be listed, quoted or included for trading, or
any Successor Securities will be listed, quoted or included for trading
upon notification of issuance if applicable, on any national securities
exchange or with another system on which the Trust Preferred Securities
are then listed, quoted or included for trading;
(iv) such merger, conversion, consolidation,
amalgamation or replacement does not cause the Trust Preferred
Securities (including any Successor Securities) to be
25
downgraded or placed under surveillance for review by any nationally
recognized statistical rating organization;
(v) such merger, conversion, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities and any Successor Trust Preferred Common
Securities) in any material respect;
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) prior to such merger, conversion,
consolidation, amalgamation or replacement, the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, conversion, consolidation,
amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect;
(B) following such merger, conversion,
consolidation, amalgamation or replacement, neither the Trust
nor the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, conversion,
consolidation, amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a grantor
trust for United States federal income tax purposes;
(viii) the Sponsor, directly or indirectly, owns all
of the Successor Common Securities and guarantees the obligations of
such Successor Entity under the Successor Trust Preferred Securities at
least to the extent provided by the Securities Guarantees.
(ix) the Property Trustee has received an Officers'
Certificate from the Sponsor and an opinion of counsel, each to the
effect that all conditions precedent to the transaction as set forth in
this Agreement have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge or convert with or into, or be
replaced by any other Person or permit any other Person to consolidate,
amalgamate, or merge with or into, or replace it if such consolidation,
amalgamation, merger, conversion, or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
26
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date, the Sponsor shall purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3.0% of
the Securities of the Trust issued on the Closing Date, at the same time as the
Trust Preferred Securities are sold.
Section 4.2 Covenants of the Sponsor.
For so long as the Trust Preferred Securities remain
outstanding, the Sponsor shall:
(i) cause the Trust to remain a statutory business
trust and not to voluntarily dissolve, wind up, liquidate, or terminate,
except as permitted by this Agreement;
(ii) use its commercially reasonable efforts to
ensure that the Trust will not be (A) an Investment Company or (B)
classified as other than a grantor trust for United States federal
income tax purposes.
Section 4.3 Rights and Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities and so long as the Securities are outstanding, the Sponsor shall have
the right and responsibility (which shall be exclusive except as otherwise set
forth herein) to engage in the following activities:
(a) determine the Terms and Conditions;
(b) prepare, execute and file on behalf of the Trust with
the Commission a registration statement on Form S-3 and any prospectus or
prospectus supplement relating to such registration statement in relation to the
Trust Preferred Securities, including any amendments thereto;
(c) if deemed necessary or advisable by the Sponsor,
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 on behalf of the Trust, and prepare, execute and file any documents on
behalf of the Trust as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(d) if deemed necessary or advisable by the Sponsor,
prepare, execute and file on behalf of the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Trust Preferred Securities;
(e) if necessary, prepare, execute and file on behalf of
the Trust with the Commission, a registration statement on Form 8-A relating to
the registration of the Trust
27
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto; and
(f) negotiate the Underwriting Agreement and any other
instrument or agreement which, in the opinion of the Sponsor, the Trust should
be a party to, bound by or a beneficiary of, including any remarketing, auction
or exchange agreement.
Section 4.4 Right to Proceed.
(a) The Sponsor acknowledges the rights of Holders to
institute a Direct Action as set forth in Section 3.8(e) hereto.
Section 4.5 Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the
Securities by the Trust, the Sponsor shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and compensation of the Trustee
under the Indenture in accordance with the provisions of the Indenture;
(b) be responsible for and shall pay all debts and
obligations (other than with respect to the Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization, maintenance and dissolution of the Trust), the
offering, sale and issuance of the Securities (including commissions to the
underwriters in connection therewith), the fees and expenses (including
reasonable counsel fees and expenses) of the Property Trustee, the Delaware
Trustee and the Administrative Trustees (including any amounts payable under
Article X of this Agreement), the costs and expenses relating to the operation
of the Trust, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, Paying Agents, Registrars,
transfer agents, duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by the Property
Trustee of the rights of the Holders;
(c) be primarily liable for any indemnification
obligations arising under Section 10.4 with respect to this Agreement; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
The Sponsor's obligations under this Section 4.5 shall be for
the benefit of, and shall be enforceable by, any Person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.5 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
28
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional agreements as
may be necessary or desirable in order to give full effect to the provisions of
this Section 4.5.
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by the Holders of a Majority in
liquidation amount of the Common Securities; provided, however, that, the number
of Trustees shall in no event be less than two (2), provided further that (1)
one Trustee shall meet the requirements of Section 5.2(a) or (b); (2) there
shall be at least one Trustee who is an employee or officer of, or is affiliated
with the Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the
Property Trustee for so long as this 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 5.2 Delaware Trustee.
If required by the Business 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 (including ss. 3807, of the Business Trust Act),
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 shall also be the Delaware Trustee and Section 3.11
shall have no application.
(c) The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ Center (or ▇.▇. ▇▇▇ ▇▇▇▇)
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
29
Section 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall
act as Property Trustee for so long as this Agreement is required to qualify as
an Indenture under the Trust Indenture Act, which shall:
(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 5.3(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 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of ss. 310(b) of the Trust Indenture
Act, the Property Trustee and the Holder of the Common Securities (as if it were
the obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act.
(d) The Trust Preferred Securities Guarantee and the
Indenture shall be deemed to be specifically described in this Agreement and the
Indenture for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Section 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative 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.
30
Section 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
K. Hier
▇.▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
(a) Except as otherwise expressly set forth in this
Agreement and except if a meeting of the Administrative Trustees is called in
accordance with Section 5.9 with respect to any matter over which the
Administrative Trustees have power to act, any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee.
(b) Unless otherwise determined by the Administrative
Trustees in accordance with Section 5.9, and except as otherwise required by the
Business Trust Act or applicable law, any Administrative Trustee is authorized
to execute on behalf of the Trust any documents which the Administrative
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 3.6.
Section 5.6 Appointment; Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed
or removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) after the issuance of any Securities, by the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities
unless an Event of Default shall have occurred and be continuing, and
(iii) if an Event of Default shall have occurred and
be continuing, after the issuance of the Securities, with respect to:
(A) the Administrative Trustees, by vote or
written consent of the Holders of a Majority in liquidation
amount of the Common Securities acting separately as a class;
and
(B) the Property Trustee and the Delaware
Trustee, by vote or written consent of the Holders of a
Majority in liquidation amount of the Trust Preferred
Securities, acting separately as a class.
(b) (i) The Property Trustee shall not be removed in
accordance with Section 5.6(a) until a Successor Property Trustee possessing the
qualifications to act as Property Trustee under Sections 5.2 and 5.3 has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Administrative
31
Trustees, the Delaware Trustee (if the removed Property Trustee is not also the
Delaware Trustee) and the Sponsor.
(ii) The Delaware Trustee shall not be removed in
accordance with Section 5.6(a) until a successor possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (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 Administrative Trustees, the Property
Trustee (if the removed Delaware Trustee is not also the Property
Trustee) and the Sponsor.
(c) A Trustee appointed to office shall hold office until
such Trustee's successor shall have been appointed or until such Trustee's
death, bankruptcy, dissolution, termination, 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 other Trustees,
the Sponsor, the Trust and, after an Event of Default has occurred and is
continuing, the Holders of Trust Preferred Securities, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of 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, the Delaware Trustee, the resigning
Property Trustee and, after an Event of Default has occurred
and is continuing, the Holders of Trust Preferred Securities;
or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities and the Trust is terminated
pursuant to the terms of this Agreement and the Securities;
and
(ii) no such resignation of 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, the
Property Trustee, the resigning Delaware Trustee and, after an Event of
Default has occurred and is continuing, the Holders of Trust Preferred
Securities.
(d) The Holders of the Common Securities or, if an Event
of Default has occurred and is continuing after the issuance of any Securities,
the Holders of Trust Preferred Securities shall use all reasonable efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the other Trustees, the Sponsor,
the Trust and, after an Event of Default has occurred and is continuing, the
Holders of the Trust Preferred Securities of an instrument of resignation, the
resigning Property Trustee or Delaware Trustee, as applicable, may petition any
court of
32
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.
(g) At the time of the resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee any
amounts that may be owed to such Trustee pursuant to Section 10.4.
Section 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two Administrative Trustees, a majority of
the Administrative Trustees shall be conclusive evidence of the existence of
such vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with Section 5.6.
Section 5.8 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 dissolve, terminate or annul the Trust. Whenever a
vacancy among the Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 5.6, the Administrative Trustees in office, regardless of their number,
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Agreement.
Section 5.9 Meetings.
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative 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 Administrative 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 an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative 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 Agreement, any action of the Administrative Trustees
may be taken at (i) a meeting by vote of a majority of the Administrative
Trustees
33
present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or (ii) without a
meeting and without prior notice by the unanimous written consent of the
Administrative Trustees. In the event there is only one Administrative Trustee,
any and all action of such Administrative Trustee shall be evidenced by a
written consent of such Administrative Trustee.
Section 5.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6.
(b) The Administrative 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 Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person 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 Person 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 Person succeeding to all or substantially all
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 Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however that such successor shall promptly notify the Sponsor (except that a
Successor Delaware Trustee shall file an appropriate amendment to the
Certificate of Trust of the Trust, if required by the Business Trust Act).
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
If and to the extent that the Trust receives income on any
Debenture whether in cash, securities or other property as proceeds from the
redemption, repayment, exchange, maturity or other disposition of any Debenture
(including any interest on or the principal of the Debentures, any securities or
other property received in exchange for the Debentures (collectively, the
"Payment Amount"), then, unless otherwise specified in this Agreement, the
Property Trustee shall distribute the Payment Amount to the Holders of the
Securities in accordance with the terms of the Securities they hold as set forth
in this Agreement, including the Terms and Conditions. The Property Trustee
shall make the distributions on the Trust Preferred Securities and the Common
Securities in accordance with the relative rights, preferences and privileges
that apply to each of those classes of Securities as set forth in this
Agreement.
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ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities
(a) The Administrative Trustees shall, on behalf of the Trust,
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in the
Terms and Conditions (the "Trust Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in the Terms and Conditions (the
"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 Common
Securities.
(b) The terms of the Securities shall be set forth in the
Terms and Conditions and shall be attached to this Agreement as Exhibit A. Such
Terms and Conditions are incorporated herein by reference and shall set forth
the following to the extent not provided by, or in lieu or modification of, the
other provisions of this Agreement:
(1) the designation of the Trust Preferred Securities and the
designation of the Common Securities;
(2) any limit upon the number and/or aggregate liquidation amount of
the Trust Preferred Securities or the Common Securities to be
executed and delivered under this Agreement (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such class
pursuant to Section 9.2, 9.7 or 9.8, upon repayment or redemption
in part of any Security or upon surrender in part of any Security
for conversion or exchange into other securities pursuant to its
terms);
(3) the amounts payable out of the assets of the Trust to, and any
other rights of the Holders upon, the liquidation of the Trust and
any provisions for the dissolution and liquidation of the Trust,
including the obligation, if any, of the Sponsor, the Trust or any
other party to liquidate the Trust and any terms and conditions of
such liquidation;
(4) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the liquidation amount
and premium, if any, of the Securities are distributable;
(5) the rate or rates at which income on the Trust Property shall be
distributed to Holders, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates, if
any, from which such income shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the date
or dates, if any, on which such income shall be payable, including
any deferral provisions, and the record date or dates, if any, for
the income payable on the Securities on any such income payment
date, the notice, if any, to Holders regarding the determination
of income on a floating rate Security and the manner of giving
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such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(6) whether the Distributions on the Securities will be cumulative
and, if so, the dates from which and upon which distributions will
accumulate and be payable;
(7) whether, in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the distributions
on the Securities may be made, the Securities may be surrendered
for registration of transfer, exchange, redemption, repayment,
conversion or upon maturity, and notices or demands to or upon the
Trust in respect of the Securities and this Agreement may be
served;
(8) whether the Trust is obligated or entitled to redeem or purchase
any of such Securities at its option, pursuant to any sinking fund
or analogous provision or at the option of any Holder thereof or
otherwise, and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed
or purchased, in whole or in part, pursuant to such obligation,
and any provisions for the remarketing, auction or other secondary
sales of Securities so redeemed or purchased;
(9) the denominations in which the Securities shall be issuable if
other than denominations of $1,000 and any integral multiple;
(10) whether the Securities will be convertible into and/or
exchangeable for other securities or property or both, and if so,
the terms and conditions upon which the Securities will be so
convertible or exchangeable;
(11) any voting rights granted to the Holders of the Trust Preferred
Securities or the Common Securities in addition to or in lieu of
the voting rights set forth elsewhere in this Agreement;
(12) if other than U.S. dollars, the currency in which cash
distributions on the Securities shall be payable;
(13) if cash distributions with respect to the Securities are to be
payable, at the election of the Trust or a Holder thereof or
otherwise, in a currency other than that in which the Securities
are stated to be payable, the date or dates on which, the period
or periods within which, and the other terms and conditions upon
which, such election may be made, and the time and manner of
determining the exchange rate between the currency in which the
Securities are stated to be payable and the currency in which the
Securities or any of them are to be paid pursuant to such
election;
(14) whether any distributions may be determined with reference to an
index, formula or other method or methods (which index, formula or
method or methods may be based, without limitation, on one or more
currencies, commodities, equity indices or other indices), and, if
so, the terms and conditions upon which and the manner in which
such amounts shall be determined and paid or payable;
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(15) the title and amount of the Debentures to be acquired with the
proceeds of the sale of the Securities;
(16) the ranking of the Trust Preferred Securities and the Common
Securities; and
(17) any other rights, preferences, restrictions, limitations or
conditions relative to the Trust Preferred Securities or the
Common Securities permitted by Delaware law and any deletions from
or modifications or additions to this Agreement, including any
Events of Default or covenants of any of the parties hereto, in
respect of the Securities, provided no covenant in this Agreement
may be modified without the consent of the party giving such
covenant.
(c) The Certificates shall be in the forms prepared by the
Sponsor and signed on behalf of the Trust by at least one Administrative
Trustee. Such signature shall be the manual or facsimile signature of any
present or any future Administrative Trustee. In case any Administrative Trustee
who shall have signed any of the Securities shall cease to be such
Administrative 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 Administrative Trustee;
and any Certificate may be signed on behalf of the Trust by any persons who, at
the actual date of execution of such Certificate, shall be an Administrative
Trustee of the Trust, although at the date of the execution and delivery of the
Agreement any such person was not such an Administrative Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Administrative Trustee, as evidenced
by such individual's execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Administrative Trustee that signs such Certificates 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 Securities may be listed, or to conform to usage.
A Trust Preferred Security Certificate shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that a Trust
Preferred Security Certificate has been authenticated under this Agreement.
Each Trust Preferred Security Certificate shall be dated the
date of its authentication by the Property Trustee. Each Common Security
Certificate shall be dated the date it is executed by an Administrative Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate Trust Preferred Security
Certificates, provided the aggregate liquidation amount or number of the Trust
Preferred Securities shall not exceed the aggregate liquidation amount or
number, as the case may be, of Trust Preferred Securities designated in the
Terms and Conditions, as such liquidation amount or number, as the case may be,
may be reduced by redemptions, repayments, exchanges, conversions or liquidating
distributions.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust Preferred
Security Certificates. An authenticating
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agent may authenticate Trust Preferred Security Certificates whenever the
Property Trustee may do so. Each reference in this 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 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 Securities as provided in this
Agreement, the Securities so issued shall be deemed to be validly issued, fully
paid and, subject to Section 10.1(b), non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Trust Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
(g) The Holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
Section 7.2 Paying Agent and Registrar.
In the event that the Trust Preferred Securities are not in
book-entry only form:
(a) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent"), and any such Paying Agent shall
comply with Section 317(b) of the Trust Indenture Act. The Administrative
Trustees on behalf of the Trust may appoint the Paying Agent and may appoint one
or more additional paying agents in such other locations as it shall determine.
The term "Paying Agent" includes any additional paying agent. The Administrative
Trustees on behalf of the Trust may change any Paying Agent without prior notice
to any Holder. The Administrative Trustees on behalf of the Trust shall notify
the Property Trustee of the name and address of any Paying Agent not a party to
this Agreement. If the Administrative Trustees on behalf of the Trust fail to
appoint or maintain another entity as Paying Agent, the Property Trustee shall
act as such. The Administrative Trustees on behalf of the Trust or any of its
Affiliates (including the Sponsor) may act as Paying Agent. The Property Trustee
at its Corporate Trust Office shall initially act as Paying Agent for the Trust
Preferred Securities and the Common Securities.
(b) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Trust Preferred Securities may be
presented for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register of the Trust Preferred Securities and of their transfer or
exchange. The Administrative Trustees on behalf of the Trust may appoint the
Registrar and may appoint one or more co-registrars in such other locations as
it shall determine. The term "Registrar" includes any such additional registrar.
The Administrative Trustees on behalf of the Trust may change any Registrar or
co-registrar without prior notice to any Holder. The Administrative Trustees on
behalf of the Trust shall notify the Property Trustee of the name and address of
any Agent not a party to this Agreement. If the
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Administrative Trustees on behalf of the Trust fail to appoint or maintain
another entity as Registrar, the Property Trustee shall act as such. The Trust
or any of its Affiliates (including the Sponsor) may act as Registrar. The
Administrative Trustees on behalf of the Trust shall act as Registrar for the
Common Securities.
(c) Notwithstanding Sections 3.6(b)(vi) and 3.6(l), the Trust
initially appoints the Property Trustee as Registrar for the Trust Preferred
Securities and authorizes it to execute and deliver letters, documents and
instruments with DTC and other Clearing Agencies relating to the Trust Preferred
Securities.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
--------------------
(a) The Trust shall dissolve and its affairs shall be wound up
upon the first of the following to occur:
(i) the expiration of the term of the Trust provided
in Section 3.13 of this Agreement;
(ii) upon the bankruptcy of the Sponsor or the Trust;
(iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by this Agreement
or any Trust Property) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor;
(iv) upon the vote of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a
single class to dissolve the Trust;
(v) the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(vi) upon the distribution to the Holders of the
Debentures and all other amounts they are required to receive in
accordance with the terms of this Agreement and the Securities,
provided that the Property Trustee has received written notice from the
Sponsor directing the Property Trustee to dissolve the Trust (which
direction is optional and, except as otherwise expressly provided
herein, within the discretion of Sponsor),
(vii) upon the entry of a decree of judicial
dissolution of the Sponsor or the Trust;
(viii) when all the Securities shall have been called
for redemption and the amounts necessary for redemption shall have been
distributed to the Holders in accordance with the terms of this
Agreement and the Securities; and
(ix) any other event specified in the Terms and
Conditions.
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(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the
Trust, a certificate of cancellation of the Certificate of Trust of the Trust
shall be filed with the Secretary of State of the State of Delaware in
accordance with the Business Trust Act.
(c) The provisions of Section 4.4 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Agreement and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Agreement shall be null and void.
(b) Subject to this Article IX and the Terms and Conditions,
Trust Preferred Securities shall be freely transferable.
(c) To the fullest extent permitted by applicable law, subject
to this Article IX, the Sponsor and any Related Party may only transfer Common
Securities to the Sponsor or a Related Party of the Sponsor; provided that, any
such transfer is subject to the condition precedent that the transferor obtain
the written opinion of nationally recognized independent counsel experienced in
such matters that such transfer would not cause more than an insubstantial risk
that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer or Exchange of Certificates.
The Registrar shall provide for the registration of
Certificates and of transfers or exchanges of Certificates, which shall be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other government
charges that may be imposed in relation to it. The Trust will not be required to
register or cause to be registered the transfer of its trust preferred
securities after they have been converted, exchanged, repaid, redeemed or called
for redemption. Upon surrender for registration of transfer or exchange of any
Certificate at the Corporate Trust Office of the Property Trustee, the
applicable Registrar shall cause one or more new Certificates to be issued in
the name of the designated transferee or transferees or the party requesting the
exchange, as the case may be. Every Certificate surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer or
exchange in form satisfactory to the applicable Registrar and duly executed by
the Holder or such Holder's attorney duly authorized
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in writing. Each Certificate surrendered for registration of transfer or
exchange shall be canceled by the applicable Registrar. A transferee of a
Certificate and the recipient of one or more Certificates issued in exchange for
cancelled Certificates shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee or
recipient of a Certificate or Certificates duly executed by an Administrative
Trustee and, in the case of a Trust Preferred Security Certificate,
authenticated by the Property Trustee. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Agreement.
Section 9.3 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 Securities represented by such
Certificate for purposes of receiving Distributions 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 Securities represented
by such Certificate on the part of any Person, whether or not the Trust shall
have actual or other notice thereof.
Section 9.4 Book Entry Interests.
Unless otherwise specified in the Terms and Conditions, the
Trust Preferred Securities Certificates, on original issuance, shall be issued
in the form of one or more, fully registered, global Trust Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Each such Global Certificate
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 any
Global Certificate, except as provided in Section 9.7. Except for the definitive
Trust Preferred Security Certificates issued to the Trust Preferred Security
Beneficial Owners pursuant to Section 9.7 or in accordance with the Terms and
Conditions:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust, the Trustees and any Agent shall be entitled to
deal with the Clearing Agency for all purposes of this Agreement (including the
payment of distributions on any Global Certificate and receiving approvals,
votes or consents hereunder) as the Holder of the Trust Preferred Securities and
the sole holder of any Global Certificate and shall have no obligation to the
Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement other than the Terms and
Conditions, the provisions of this Section 9.4 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 the Trust Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants to receive and transmit payments and other distributions on the
Global Certificates to such Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency Participants; provided, that, solely
for the purposes of
41
determining whether the Holders of the requisite amount of Trust Preferred
Securities have voted on any matter provided for in this Agreement, the Trustees
may conclusively rely on, and shall be 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 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust
Preferred Security Holders is required under this Agreement, unless and until
definitive fully registered Trust Preferred Security Certificates shall have
been issued to the Trust Preferred Security Beneficial Owners pursuant to
Section 9.7 or otherwise, the Administrative 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 9.6 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
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Trust Preferred Securities.
Section 9.7 Definitive Trust Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue 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 9.6; or
(b) the Administrative Trustees elect after consultation with
the Sponsor to terminate the book-entry system through the Clearing Agency with
respect to the Trust Preferred Securities, then:
(1) definitive fully registered Trust Preferred
Security Certificates shall be prepared and executed by the
Administrative Trustees and authenticated by the Property
Trustee on behalf of the Trust with respect to such Trust
Preferred Securities; and
(2) upon surrender of any Global Certificate by the
Clearing Agency, accompanied by registration instructions, the
Administrative Trustees shall cause definitive fully
registered Trust Preferred Securities Certificates to be
executed, and the Property Trustee shall cause such Trust
Preferred Securities Certificates to be authenticated and
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 protected in relying on,
said instructions of the Clearing Agency. The definitive fully
registered Trust
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Preferred Security Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the
Administrative Trustees and 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 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If: (a) any mutilated Certificate shall be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and (b) there shall be delivered to the Administrative Trustees and
the Property Trustee such security or indemnity as may be required by them to
keep each of the Trustees and the Trust harmless, then, in the absence of notice
that such Certificate shall have been acquired by a protected purchaser, any
Administrative Trustee on behalf of the Trust shall execute and deliver, and, in
the case of a Trust Preferred Securities Certificate, the Property Trustee shall
authenticate, 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 9.8, the
Administrative Trustees and the Property Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Debentures, any other instrument or agreement, the Securities Guarantees and the
terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the Holders of
the Securities, which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
43
(b) The Sponsor, as the Debenture Issuer, shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss.3803(a) of the Business Trust Act, the
Holders of the Trust Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
Section 10.2 Exculpation.
(a) No 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 Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence), bad faith or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the 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 Distributions to Holders of Securities might properly be paid.
Section 10.3 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 any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this 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 any Covered Persons and any Indemnified Person; or
(ii) whenever this Agreement or any other instrument
or agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner
44
that is, or provides terms that are, fair and reasonable to the Trust
or any Holder of 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 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 Agreement an Indemnified Person is
permitted or required to make a decision:
(i) in its "sole 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 Agreement or by applicable law.
Section 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company 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 Company Indemnified Person against expenses (including
reasonable 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 Company
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 Sponsor shall indemnify, to the fullest
extent permitted by law, any Company 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 Company
Indemnified Person against expenses (including reasonable attorneys'
fees) actually and
45
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 Company
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) Any indemnification under paragraphs (i) and
(ii) of this Section 10.4(a) (unless ordered by a court) shall be made
by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Company 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 Administrative Trustees by a majority vote of
a Quorum consisting of such Administrative 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
Administrative Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Common Security Holder of the Trust.
(iv) Expenses (including reasonable attorneys' fees)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Sponsor in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the
Administrative Trustees by a majority vote of a Quorum of disinterested
Administrative Trustees, (ii) if such a Quorum is not obtainable, or,
even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion
or (iii) the Common Security Holder of the Trust, that, based upon the
facts known to the Administrative Trustees, independent legal counsel
or Common Security Holder at the time such determination is made, such
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 Company 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
Administrative Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached such
person's duty to the Trust or its Common or Trust Preferred Security
Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of
46
expenses may be entitled under any agreement, vote of shareholders or
disinterested directors of the Sponsor or Trust Preferred Security
Holders of the Trust 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 10.4(a) shall
be deemed to be provided by a contract between the Sponsor and each
Company Indemnified Person who serves in such capacity at any time
while this Section 10.4(a) is in effect. Any repeal or modification of
this Section 10.4(a) shall not affect any rights or obligations then
existing.
(vi) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Company
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 Sponsor would have the power to indemnify him
against such liability under the provisions of this Section 10.4(a).
(vii) For purposes of this Section 10.4(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 10.4(a) with respect to the resulting or
surviving entity as such person would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the successors, heirs, executors and
administrators of such a person.
(b) To the fullest extent permitted by law, the Sponsor agrees
to indemnify each Fiduciary Indemnified Person for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense to the
extent incurred without gross negligence (or in the case of the Property
Trustee, pursuant to Section 3.9, negligence), bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The provisions of this
Section 10.4(b) shall survive the satisfaction and discharge of this Agreement
and any resignation or removal of the Property Trustee or the Delaware Trustee,
as the case may be.
47
Section 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) 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 Securities shall have no rights by virtue of this
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 Delaware Trustee or 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.
Section 10.6 Trustees' Fees and Expenses.
Each Trustee shall receive as compensation for its services
hereunder such fees and expenses as have been separately agreed upon before the
date hereof between the Sponsor and such Trustee, and each Trustee shall be
entitled to be reimbursed by the Sponsor for other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as such Trustee may employ in
connection with the exercise and performance of its rights and duties hereunder.
ARTICLE XI
ACCOUNTING
Section 11.1 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.
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees on behalf of the Trust shall keep, or cause to be kept,
full books of account, records and supporting documents, all of 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 Trust shall
use the accrual method of accounting for United States federal income tax
purposes.
(b) The Administrative Trustees, on behalf of the Trust, shall
cause to be duly prepared and delivered to each of the Holders of Securities,
any annual United States federal income tax information statement required by
the Code and the Treasury Regulations, containing
48
such information with regard to the 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 Administrative
Trustees on behalf of the Trust shall endeavor to deliver all such statements
within 30 days after the end of each Fiscal Year of the Trust.
(c) The Administrative Trustees on behalf of the Trust shall
cause to be duly prepared and filed with the appropriate taxing authority an
annual United States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Trust with any state or local
taxing authority.
Section 11.3 Banking.
The Administrative Trustees, on behalf of 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 for the benefit of holders of
Securities of funds in respect of Trust Property shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Administrative Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Trustee Account.
Section 11.4 Withholding.
The Administrative Trustees on behalf of the Trust shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees on behalf of the Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual distributions made, the Trust may reduce subsequent distributions by
the amount of such withholding.
49
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
----------
Except as otherwise provided in this Agreement or by any
applicable terms of the Securities:
(a) this Agreement may only be amended by a written instrument
approved and executed by the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees) and:
(i) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee, also by the
Property Trustee; and
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, also by the
Delaware Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment,
the Property 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 Agreement (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this
Agreement (including the terms of the Securities);
and
(B) an opinion of qualified independent
counsel that such amendment is permitted by, and
conforms to, the terms of this Agreement (including
the terms of the Securities); and
(iii) to the extent the result of such amendment
would be to:
(A) cause the Trust to fail to continue to
be classified for purposes of United States federal
income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
50
(c) after the Trust has issued any Securities that remain
outstanding, without the consent of the Holders of a Majority in liquidation
amount of each class of Securities affected, this Agreement may not be amended
for any reason in a manner that would adversely affect the rights, privileges or
preferences of such class of Securities, provided that, except as may be
provided in the Terms and Conditions, without the consent of each Holder of
Securities affected thereby, this Agreement may not be amended to:
(i) change the Distribution rate, or manner of
calculation of the Distribution rate, amount, timing or currency or
otherwise adversely affect the method of any required payment;
(ii) change the purpose of the Trust;
(iii) authorize the issuance of any additional
beneficial interests in the Trust;
(iv) change the conversion, exchange, redemption or
repayment provisions, if any;
(v) change the conditions precedent for the Sponsor
to elect to dissolve the Trust and distribute the Debentures held by
the Trust to the Holders of the Securities, if applicable;
(vi) change the liquidation, distribution or other
provisions relating to the distribution of amounts payable upon the
dissolution and liquidation of the Trust;
(vii) affect the limited liability of any Holder of
the Securities; or
(viii) restrict the right of a Holder of the
Securities to institute suit for the enforcement of any required
payment on or, if applicable, after the due date therefor or for the
conversion or exchange of the Securities in accordance with their
terms.
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Sponsor;
(f) the rights of the holders of the Common Securities under
Article V 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 Common Securities; and
(g) subject to Section 12.1(c) and the Terms and Conditions,
this Agreement may be amended by the Trustees and the Sponsor without the
consent of the Holders of the any Securities that are outstanding to:
(i) cure any ambiguity;
51
(ii) correct or supplement any provision in this
Agreement that may be defective or inconsistent with any other
provision of this Agreement;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) modify, add or eliminate provisions necessary to
ensure classification as a grantor trust for United States federal
income tax purposes or to ensure that the Trust will not be subject to
the Investment Company Act, conform to any change in the Investment
Company Act or the Trust Indenture Act or the rules and regulations
promulgated thereunder or any written change in interpretation or
application of such act or such rules or regulations by any legislative
body, court, government agency or regulatory authority;
(v) comply with the requirements of the Trust
Indenture Act to ensure that this Agreement is qualified under the
Trust Indenture Act, or cause the Trust to continue to be classified
for United States federal income tax purposes as a grantor trust.
Any amendments to this Agreement adopted pursuant to Section 12.1(g)
shall become effective when notice thereof is given to the Holders.
Section 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Except as otherwise provided in the Terms and Conditions,
meetings of the Holders of any class of Securities may be called at any time by
the Administrative Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of Securities are entitled to
act under the terms of this Agreement, the terms of the Securities or the rules
of any stock exchange on which the Trust Preferred Securities are listed or
admitted for trading. The Administrative Trustees shall call a meeting of the
Holders if directed to do so by the Holders of at least 10% in liquidation
amount of Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
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 Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at least 7
days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Agreement, the terms of the Securities
or the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may
be taken without a meeting and without prior notice if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less
52
than the minimum amount of Securities in liquidation amount that would
be necessary to authorize or take such action at a meeting at which all
Holders of Securities 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 of Securities entitled to vote who have not
consented in writing. The Administrative Trustees may specify that any
written ballot submitted to the Holder of Securities for the purpose of
taking any action without a meeting shall be returned to the Trust
within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder of
Securities 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 of Securities 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
of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Administrative Trustees or by such other
Person that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement,
the terms of the Securities, the Trust Indenture Act or the listing
rules of any stock exchange on which the Trust Preferred Securities are
then listed or trading otherwise provides, the Administrative Trustees,
in their sole discretion, shall establish all other provisions relating
to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, 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 XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
Section 13.1 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 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 banking corporation, a national
banking association or a bank with trust powers, duly organized, validly
existing and in good standing under the laws
53
of the United States of America or any State of the United States, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the Property Trustee satisfies the requirements set forth
in Section 5.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Agreement
by the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of this Agreement.
Section 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this 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 banking corporation or national
banking association, duly organized, validly existing and in good standing under
the laws of the State of Delaware or the United States, as the case may be, with
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee, and it constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Agreement;
and
54
(d) the execution, delivery and performance of the Agreement
by the Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Delaware Trustee; and
(e) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
All notices provided for in this 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 Administrative Trustees or the Trust, in
care of the Administrative 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 Securities and the other Trustees):
DTE Energy Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ Center (or ▇.▇. ▇▇▇ ▇▇▇▇)
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
(c) if given to the Property Trustee, at its Corporate Trust
Office to the attention of Capital Markets Fiduciary Services (or such other
address as the Property Trustee may give notice of to the Holders of the
Securities):
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust and the other
Trustees):
55
c/o DTE Energy Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
(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 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the 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 14.3 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 Agreement shall be interpreted to further this intention of
the parties.
Section 14.4 Headings.
Headings contained in this Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Agreement or any provision hereof.
Section 14.5 Successors and Assigns.
Whenever in this 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 Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this 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.
56
Section 14.7 Entire Agreement.
This Agreement constitutes the entire agreement among the
parties. It supersedes any prior agreement or understandings among them, and it
may not be modified or amended in any manner other than as set forth herein.
Section 14.8 Remedies.
The failure of any party to seek redress for violation of, or
to insist upon the strict performance of, any provision of this Agreement shall
not prevent a subsequent act, which would have originally constituted a
violation, from having the effect of an original violation. The rights and
remedies provided by this Agreement are cumulative and the use of any one right
or remedy by any party shall not preclude or waive its right to use any or all
other remedies. Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance or otherwise.
Section 14.9 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by affixing the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
57
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
----------------------------------------------
K. Hier, as Administrative Trustee
of the Trust
----------------------------------------------
▇.▇. ▇▇▇▇▇▇, as Administrative Trustee
of the Trust
----------------------------------------------
▇.▇. ▇▇▇▇▇▇, as Administrative Trustee
of the Trust
The Bank of New York (Delaware),
as Delaware Trustee
By:
-------------------------------------------
Name:
Title:
The Bank of New York,
as Property Trustee
By:
-------------------------------------------
Name:
Title:
DTE Energy Company,
as Sponsor
By:
-------------------------------------------
Name:
Title:
58
EXHIBIT A
TERMS AND CONDITIONS OF
7.8% TRUST PREFERRED SECURITIES
7.8% COMMON SECURITIES
Pursuant to Section 7.1(a) of the Amended and Restated Trust
Agreement, dated as of January 15, 2002, of DTE Energy Trust I (as amended from
time to time, the "Agreement"), hereby established are the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Preferred Securities and the Common Securities:
(1) These Terms and Conditions form a part of the Agreement,
except as otherwise provided herein or unless the context otherwise
requires, and all of the provisions of the other parts of the
Agreement, including the definitions of capitalized terms, apply to
these Terms and Conditions. Furthermore, unless the context otherwise
requires, in these Terms and Conditions, references to paragraphs mean
paragraphs of these Terms and Conditions and:
"Additional Interest" has the meaning set forth in paragraph
3(d).
"Capital Stock" means (i) with respect to any Person organized
as a corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interest in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a corporation, the partnership, membership or other equity
interests or participations in such Person.
"Change in 1940 Act Law" has the meaning set forth in
paragraph 5(b).
"Compound Interest" has the meaning set forth in paragraph
3(a).
"Coupon Rate" has the meaning set forth in paragraph 3(a).
"Debentures" means the 7.8% Junior Subordinated Debentures due
2032 of the Debenture Issuer.
"Distribution Payment Date" has the meaning set forth in
paragraph 3(b).
"Extension Period" has the meaning set forth in paragraph
3(b).
"Indenture" means the Amended and Restated Indenture, dated as
of April 9, 2001, as supplemented by the supplemental indenture, dated as of
January 15, 2002, with respect to the Debentures, between the Debenture Issuer
and the Debenture Trustee.
"Investment Company Event" has the meaning set forth in
paragraph 5(b).
"Liquidation" has the meaning set forth in paragraph 4.
"Liquidation Distribution" has the meaning set forth in
paragraph 4.
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"90 Day Period" has the meaning set forth as paragraph 5(b).
"Ministerial Action" has the meaning set forth in paragraph
5(b).
"Pro Rata" has the meaning specified in paragraph 11.
"Redemption/Distribution Notice" has the meaning set forth in
paragraph 6(a).
"Redemption Price" has the meaning set forth in paragraph
5(a).
"Rights Plan" means a plan of the Debenture Issuer providing
for the issuance by the Debenture Issuer to all holders of its Common Stock of
rights entitling the holders thereof to subscribe for or purchase shares of
Common Stock or any class or series of preferred stock, which rights (i) are
deemed to be transferred with such shares of Common Stock, (ii) are not
exercisable and (iii) are also issued in respect of future issuances of Common
Stock, in each case until the occurrence of a specified event or events.
"Stated Maturity" means, with respect to the Debentures,
February 1, 2032.
"Special Event" means an Investment Company Event or a Tax
Event, as the case may be.
"Special Event Redemption" has the meaning set forth in
paragraph 5(b).
"Special Event Redemption Date" has the meaning set forth in
paragraph 5(b).
"Tax Event" has the meaning set forth in paragraph 5(b).
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
(2) Designation and Number.
(a) Trust Preferred Securities. 7,200,000 Trust Preferred
Securities of the Trust, with an aggregate liquidation amount with respect to
the assets of the Trust of One Hundred and Eighty Million Dollars ($180,000,000)
and a liquidation amount with respect to the assets of the Trust of $25 per
security, are hereby designated for the purposes of identification only as "7.8%
Trust Preferred Securities" (the "Trust Preferred Securities"). The Trust
Preferred Security Certificates evidencing the Trust Preferred Securities shall
be substantially in the form of Exhibit A-1 to the Agreement, with such changes
and additions thereto or deletions therefrom as may be required by applicable
law or the rules of any stock exchange on which the Trust Preferred Securities
are listed or to conform to ordinary usage, custom or practice.
(b) Common Securities. 222,681 Common Securities of the Trust,
with an aggregate liquidation amount with respect to the assets of the Trust of
Five Million Five Hundred Sixty Seven Thousand Twenty Five Dollars ($5,567,025)
and a liquidation amount with
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respect to the assets of the Trust of $25 per security, are hereby designated
for the purposes of identification only as "7.8% Common Securities" (the "Common
Securities"). The Common Security Certificates evidencing the Common Securities
shall be substantially in the form of Exhibit A-2 to the Agreement, with such
changes and additions thereto or deletions therefrom as may be required by
applicable law or to conform to ordinary usage, custom or practice.
(c) The maximum liquidation amount of Trust Preferred
Securities and Common Securities referred to above excludes Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of other Securities pursuant to Section 9.2, 9.7 or 9.8 of the
Agreement, upon repayment, redemption or exchange into other securities in
accordance with its terms.
(d) The Trust Preferred Securities and the Common Securities
represent undivided beneficial interests in the assets of the Trust.
(e) In connection with the purchase of the Securities, the
Sponsor will deposit in the Trust, and the Trust will purchase, respectively, as
trust assets, Debentures of the Sponsor having an aggregate principal amount
equal to $185,567,025, and bearing interest at an annual rate equal to the
annual Distribution rate on the Preferred Securities and Common Securities and
having payment and redemption provisions which correspond to the payment and
redemption provisions of the Trust Preferred Securities and Common Securities.
(3) Distributions.
(a) Cash distributions will be payable on each Security at the
rate per annum of 7.8% (the "Coupon Rate") of the stated liquidation amount of
$25 per Security, such rate being the rate of interest payable on the
Debentures. Distributions in arrears for more than one quarter will bear
interest thereon compounded quarterly at the rate of 7.8% ("Compound Interest")
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable, and
Additional Interest, if any, payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year consisting of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
(b) Distributions on the Securities will be cumulative, will
accrue from January 15, 2002, and will be payable quarterly in arrears, on
February 1, May 1, August 1 and November 1 of each year, commencing on May 1,
2002, when, as and if available for payment, except as otherwise described below
(a "Distribution Payment Date"). So long as there is no Event of Default under
the Indenture with respect to the Debentures, the Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the Stated
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Maturity of the Debentures. As a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, quarterly Distributions will
continue to accumulate with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded quarterly to the extent permitted
by law during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may shorten or further extend such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions thereof, may not exceed 20 consecutive quarters
or extend beyond the Stated Maturity of the Debentures. Any interest accrued on
the Debentures during an Extension Period shall be paid Pro Rata to holders of
Debentures on the first payment date following the Extension Period and the
Payment Amount shall be paid Pro Rata to the Holders on the first Distribution
Payment Date following the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
If (A) there shall have occurred and be continuing an Event of Default
or any event of which the Debenture Issuer has actual knowledge that is, or with
the giving of notice or the lapse of time, or both, would be an Event of Default
and the Debenture Issuer has not taken reasonable steps to cure such Event of
Default, (B) the Debenture Issuer shall be in default with respect to its
payment or other obligations under the Trust Preferred Securities Guarantee or
(C) the Debenture Issuer shall have given notice of its election to begin an
Extension Period as provided in the Indenture and shall not have rescinded such
notice or such Extension Period, or any extension thereof, shall have commenced
and be continuing, then the Debenture Issuer shall not:
(i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Debenture
Issuer's Capital Stock;
(ii) make any payment of principal of or premium, if any,
or interest on or repay repurchase or redeem any
indebtedness of the Debenture Issuer that ranks
equally with or junior in right of payment to the
Debentures;
(iii) make any guarantee payments with respect to any
guarantee by the Debenture Issuer of the indebtedness
of any Subsidiary thereof or any other party if such
guarantee ranks equally with or junior in right of
payment to the Debentures;
(other than (a) dividends or distributions payable solely in
shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock of the Debenture Issuer, (b)
any declaration of a dividend in connection with the
implementation of a Rights Plan, (c) the issuance of any
Capital Stock of the Debenture Issuer under any Rights Plan,
or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (d) payments under the Trust
Preferred Securities Guarantee, (e) reclassification of the
Debenture Issuer's Capital Stock or the exchange or the
conversion of one class or series of the Debenture Issuer's
Capital Stock for another class or series of the Debenture
Issuer's Capital Stock, (f) the purchase of fractional
interests in shares of the Debenture Issuer's Capital Stock
pursuant to the conversion or exchange
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provisions of such Capital Stock or the security being
converted or exchanged, and (g) purchases of Common Stock
related to the issuance of Common Stock or rights under any of
the Debenture Issuer's benefit plans for its directors,
officers, employees, consultants or advisors or any of the
Debenture Issuer's dividend reinvestment plans).
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust at the
close of business on the Business Day immediately preceding each of the relevant
payment dates on the Securities. Subject to any applicable laws and regulations
and the provisions of the Agreement, each such payment in respect of the Trust
Preferred Securities will be made as described under the heading "Description of
the trust preferred securities -- Distributions" in the Prospectus Supplement
dated January 10, 2002 to the Prospectus dated December 11, 2001 (collectively,
the "Prospectus") of the Trust relating to the Registration Statement on Form
S-3 (file no. 74338-01) of the Sponsor and the Trust. The relevant record dates
for the Common Securities shall be the same record date as for the Trust
Preferred Securities. If the Trust Preferred Securities shall not continue to
remain in book-entry only form or are not in book-entry only form at issuance,
the relevant record dates for the Trust Preferred Securities shall conform to
the rules of any securities exchange on which the securities are listed and, if
none, as shall be selected by the Administrative Trustees, which dates shall be
at least more than one, but less than 60 Business Days before the relevant
payment dates, which payment dates correspond to the interest payment dates on
the Debentures. Distributions payable on any Securities that are not punctually
paid on any Distribution Payment Date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease to be payable
to the Person in whose name such Securities are registered on the relevant
record date, and such defaulted Distribution will instead be payable to the
Person in whose name such Securities are registered on the special record date
or other specified date determined in accordance with the Indenture; provided,
however, that Distributions shall not be considered payable on any Distribution
Payment Date falling within an Extension Period unless the Debenture Issuer has
elected to make a full or partial payment of interest accrued on the Debentures
on such Distribution Payment Date. If any date on which Distributions are
payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. Distributions
on the Securities will be paid by the Trust.
(d) If at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes imposed on Holders of Trust Preferred Securities or Common
Securities) imposed by the United States, or any other taxing authority, then,
in any such case, the Debenture Issuer will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying any such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
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(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
(4) Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each, a "Liquidation"), the
Holders of the Securities on the date of the dissolution will be entitled to
receive out of the assets of the Trust, after satisfaction of liabilities to
creditors, distributions in an amount equal to the aggregate stated liquidation
amount of such Securities, plus accumulated and unpaid Distributions on such
Securities to the date of payment (such amount being "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accumulated
and unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders in exchange for such Securities.
If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
distributions upon any liquidation Pro Rata with the holders of the Trust
Preferred Securities. However, if an Event of Default has occurred and is
continuing, the Trust Preferred Securities will have a preference over the
Common Securities with regard to those distributions.
(5) Redemption and Distribution.
(a) Upon the repayment of the Debentures at maturity, the
proceeds from such repayment shall, after satisfaction of liabilities to
creditors of the Trust, be simultaneously applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid at a redemption price of $25 per Security plus an amount
equal to accumulated and unpaid Distributions thereon at the date of the
redemption, payable in cash.
The Debentures are redeemable prior to the Stated Maturity at
the option of the Debenture Issuer (i) in whole or in part, from time to time,
on or after February 1, 2007 or (ii) at any time prior to February 1, 2007, in
whole but not in part, within 90 days following the occurrence and continuation
of a Special Event, in either case at a redemption price (the "Redemption
Price") equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon (including Additional Interest and Compound Interest, if any)
to the date of redemption.
Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal
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amount of the Debenture so repaid or redeemed at the Redemption Price. If fewer
than all the outstanding Securities are to be so redeemed, the Securities will
be redeemed Pro Rata and the Trust Preferred Securities to be redeemed will be
as described in Section 6.
(b) If an Investment Company Event (as defined herein) or a
Tax Event occurs, the Debentures are redeemable at the option of the Debenture
Issuer, in whole but not in part within 90 days following the occurrence of such
Investment Company Event or Tax Event (the "90 Day Period") on not less than 30
nor more than 60 days notice prior to the date fixed for redemption; provided,
however, that, if at the time there is available to the Trust the opportunity to
eliminate, within the 90 Day Period, the Investment Company Event or Tax Event
by taking some ministerial action, such as filing a form or making an election,
or pursuing some other similar reasonable measure that will have no adverse
effect on the Trust, the Debenture Issuer, the Sponsor or the Holders of the
Securities and will involve no material cost ("Ministerial Action"), the
Administrative Trustees will pursue such Ministerial Action in lieu of
dissolution (either, a "Special Event Redemption"). If the Debenture Issuer
redeems the Debentures upon the occurrence and continuance of a Investment
Company Event or Tax Event, the proceeds from such redemption shall
simultaneously be applied by the Trust to redeem the Securities having an
aggregate stated liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed at the Redemption Price per Security. To the extent
the Redemption Price is received by the Property Trustee, the Property Trustee
will distribute, to each record Holder of the Securities the Redemption Price
payable in liquidation of such Holder's interests in the Trust.
"Investment Company Event" means that the Administrative
Trustees shall have received an opinion of independent counsel experienced in
such matters to the effect that, as a result of the occurrence of a change in
law or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), which Change in 1940 Act Law becomes
effective on or after the date of the Prospectus, there is a more than an
insubstantial risk that the Trust is or will be considered an investment company
which is required to be registered under the Investment Company Act.
"Tax Event" means the receipt by the Administrative Trustees
of an opinion of a nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any amendment to or change
in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
the date the Securities are issued, which amendment or change is effective or
which interpretation or pronouncement is announced on or after the date of the
Prospectus, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to the income received or accrued on the
Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date thereof would not be, deductible, in whole or
in part, by the Debenture Issuer for United States federal income tax purposes
or (iii) the Trust is, or within 90
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days of the date thereof would be, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
On and from the date fixed by the Administrative Trustees for
any distribution of Debentures upon dissolution of the Trust: (i) the Securities
shall no longer be deemed to be outstanding, (ii) DTC or its nominee (or any
successor Clearing Agency or its nominee) or the record Holder of the Trust
Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any certificates representing Securities, except for certificates
representing Trust Preferred Securities held by DTC or its nominee (or any
successor Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the aggregate stated liquidation amount of such Securities, with an
interest rate of 7.8% and accumulated and unpaid interest equal to accrued and
unpaid Distributions on such Securities until such certificates are presented to
the Debenture Issuer or its agent for transfer or reissue.
(c) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(d) The Debenture Issuer will have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the Holders.
If the Debentures are distributed to the Holders and the Trust Preferred
Securities are then listed on an exchange, the Debenture Issuer will use its
best efforts to cause the Debentures to be listed on the NYSE or on such other
exchange as the Trust Preferred Securities are then listed.
(6) Redemption or Distribution Procedures.
(a) Notice of any redemption (other than in connection with
the maturity of the Debentures) of, or notice of distribution of Debentures in
exchange for, the Securities (a "Redemption/Distribution Notice") will be given
by the Property Trustee by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 6(a), 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 of Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution Notice
or in the mailing of either 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
Securities are to be redeemed, the Securities to be redeemed shall be redeemed
Pro Rata from each Holder, it being understood that, in respect of Trust
Preferred Securities registered in the name of and held of record by the
Clearing Agency (as defined in the Agreement) or its nominee, the distribution
of the proceeds of such redemption will be made to each Clearing Agency
Participant (as defined in
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the Agreement) (or Person) on whose behalf such nominee holds such securities)
in accordance with the procedures applied by such agency or nominee.
(c) If Securities are to be redeemed and the Property Trustee
gives a Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 6 (such notice will be
irrevocable), then (A) while the Trust Preferred Securities are in book-entry
only form, with respect to the Trust Preferred Securities, by 12:00 noon, New
York City time, on the redemption date, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures by 10:00 a.m. New York City
time on such Redemption Date, the Property Trustee will deposit irrevocably with
DTC or its nominee (or any 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 so
called for redemption, and (B) with respect to Trust Preferred Securities issued
in definitive form and Common Securities, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee will
irrevocably deposit with the Paying Agent funds sufficient to pay the relevant
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay such Redemption Price to the Holders of such Securities upon
surrender of their Certificates evidencing their Securities. 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 distributions will cease to accumulate on the
Securities so redeemed and all rights of Holders of such Securities so called
for redemption will cease, except the right of the Holders of such Securities to
receive the Redemption Price, but without interest on such Redemption Price.
Neither the Administrative Trustees nor the Trust shall be required to register
or cause to be registered the transfer of any Securities that have been so
called for redemption. If any date fixed for redemption of 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 (without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect
of any Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to
accumulate 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 and such Securities
shall cease to be outstanding.
(d) Redemption/Distribution Notices shall be sent by the
Property Trustee to (A) in respect of the Trust Preferred Securities, DTC or its
nominee (or any successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive Trust Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities, to the Holder thereof.
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(e) The Trust shall not be required to (i) issue, or register
the transfer or exchange of, any Securities during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of the mailing of the
relevant notice of redemption and (ii) register the transfer or exchange of any
Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any Securities being redeemed in part.
(f) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws) the Sponsor or any of
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.
(7) Reserved.
(8) Voting Rights - Trust Preferred Securities.
(a) Except as provided under Sections 8(b) and 10 and as
otherwise required by law and the Agreement, including these Terms and
Conditions, the Holders of the Trust Preferred Securities will have no voting
rights.
(b) Subject to the requirements set forth in this paragraph,
the Holders of a Majority in liquidation amount of the Trust Preferred
Securities, acting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or the exercise of any trust or power conferred upon the Property Trustee under
the Agreement, including (i) directing the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waiving any past default and its consequences that is waivable
under the Indenture, (iii) exercising any right to rescind or annul a Agreement
that the principal of all the Debentures shall be due and payable, or (iv)
consenting to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, provided, however, that, where
a consent or action under the Indenture specifically would require the consent
or act of the Holders of greater than a majority of the Holders in principal
amount of Debentures affected thereby (a "Super Majority"), the Property Trustee
may only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Trust Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; and, provided further, that if a
Debenture Event of Default has occurred and is continuing, then the Holders of
25% of the aggregate liquidation amount of the Trust Preferred Securities then
Outstanding may direct the Property Trustee to declare the principal of and
interest on the Debentures immediately due and payable. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Trust Preferred Securities except by a subsequent vote of Holders
of the Trust Preferred Securities. Other than with respect to directing the
time, method and place of conducting any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the Property Trustee shall
not take any action in accordance with the directions of the Holders of the
Trust Preferred Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax counsel to the effect that for the purposes of United
States federal income tax the Trust will not be classified as
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other than a grantor trust on account of such action. If the Property Trustee
fails to enforce its rights under the Debentures after a Holder of Trust
Preferred Securities has made a written request, such Holder of Trust Preferred
Securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding directly against the Debenture Issuer to enforce the Property
Trustee's rights under the Debentures without first instituting a legal
proceeding against the Property Trustee or any other Person. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Trust Preferred Securities may directly institute a proceeding for enforcement
of payment to such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of the Trust
Preferred Securities of such Holder on or after the respective due date
specified in the Debentures. Except as provided in the preceding sentence, the
Holders of Trust Preferred Securities shall not exercise directly any other
remedy available to the holders of the Debentures.
Any 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 of
Securities in the Trust or pursuant to written consent. The Administrative
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 record of
Trust Preferred Securities. Each such notice will include a statement setting
forth (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.
No vote or consent of the Holders of the Trust Preferred
Securities will be required for the Trust to repay and cancel Trust Preferred
Securities or to distribute the Debentures in accordance with the Agreement and
the terms of the Securities. Notwithstanding that Holders of Trust Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Trust Preferred Securities that are owned by the
Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
(9) Voting Rights - Common Securities.
(a) Except as provided under Sections 9(b) and (c) and 10 and
as otherwise required by law and the Agreement, including these Terms and
Conditions, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Agreement, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Agreement and only after any
Event of Default with respect to the Trust Preferred Securities has been cured,
waived, or otherwise
A-11
eliminated and subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Common
Securities, voting separately as a class, may direct 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 the
Agreement, including (i) directing the time, method, and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under the Indenture, or (iii) exercise any right to rescind or annul a Agreement
that the principal of all the Debentures shall be due and payable, provided
that, where a consent or action under the Indenture specifically would require
the consent or act of the Holders of a Super Majority, the Property Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 9(c),
the Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Trust Preferred Securities. Other than
with respect to directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set forth above,
the Property Trustee shall not take any action in accordance with the directions
of the Holders of the Common Securities under this paragraph unless the Property
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action. If the Property Trustee
fails to enforce its rights under the Agreement, any Holder of Common Securities
may institute a legal proceeding directly against any Person to enforce the
Property Trustee's rights under the Agreement, without first instituting a legal
proceeding against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrative Trustees will cause a notice of
any meeting at which Holders of 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 record of Common Securities. Each such notice
will include a statement setting forth (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.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Agreement and the terms of the
Securities.
(10) Amendments to Agreement and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Agreement, if any proposed amendment to the Agreement provides for, or the
Administrative Trustees otherwise propose to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Agreement or otherwise, or
A-12
(ii) the dissolution of the Trust, other than as described in Section 8.1 of the
Agreement, then the Holders of outstanding Securities as a class will be
entitled to vote on such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be effective except with
the approval of the Holders of at least a Majority in liquidation amount of the
Securities, voting together as a single class; provided, however, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Trust Preferred Securities or only the 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 effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Property Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the Debentures, the
Property Trustee shall request the written 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 Securities voting together as a single class;
provided, however, that where a consent under the Indenture specifically would
require a Super Majority, the Property Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided further, that the
Property Trustee shall not take any action in accordance with the directions of
the Holders under this Section 10(b) unless (i) the Property Trustee has
obtained an opinion of tax counsel to the effect that for the purposes of United
States federal income tax the Trust will not be classified as other than a
grantor trust on account of such action or (ii) such action would not reduce or
otherwise adversely affect powers of the Property Trustee or (iii) cause the
Trust to be deemed an "investment company" which is required to be registered
under the Investment Company Act.
(11) Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Agreement has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
(12) Listing.
The Administrative Trustees shall use their best efforts to
cause the Trust Preferred Securities to be listed for quotation on the New York
Stock Exchange.
A-13
(13) Ranking.
The Trust Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Trust Preferred Securities.
(14) Acceptance of Securities Guarantee and Indenture.
Each Holder of Trust Preferred Securities and Common
Securities by the acceptance thereof, agrees to the provisions of the Trust
Preferred Securities Guarantee and the Common Securities Guarantee,
respectively, including the subordination provisions therein, and to the
provisions of the Indenture.
(15) No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for
any additional securities.
(16) Additional Provisions.
Reserved.
(17) Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Trust
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[IF THE TRUST PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT - This Trust Preferred Security is a Global Certificate within the
meaning of the Agreement hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Trust Preferred Security is exchangeable for Trust Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Agreement and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an
authorized representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇) 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
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number________ Number of Trust Preferred Securities_________
CUSIP NO.________
Certificate Evidencing Trust Preferred Securities
of
DTE Energy Trust I
7.8% Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security)
DTE Energy Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
________________ (the "Holder") is the registered owner of _______________ Trust
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust designated as the 7.8% Trust Preferred
Securities (liquidation amount $25 per Trust Preferred Security) (the "Trust
Preferred Securities"). The Trust Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Trust Agreement of the Trust dated as of January 15, 2002 as the same may be
amended from time to time (the
A1-1
"Agreement"), including the designation of the terms of the Trust Preferred
Securities as set forth in Exhibit A to the Agreement. Capitalized terms used
herein but not defined shall have the meaning given them in the Agreement. The
Holder is entitled to the benefits of the Trust Preferred Securities Guarantee
to the extent provided therein. The Sponsor will provide a copy of the
Agreement, the Trust Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the
Agreement and is entitled to the benefits thereunder.
In addition, the Holder is deemed to have (i) agreed to the
terms of the Indenture and the Debentures, including that the Debenture are
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) as and to the extent provided in the
Indenture and (ii) agreed to the terms of the Trust Preferred Securities
Guarantee, including that the Trust Preferred Securities Guarantee is
subordinate and junior in right of payment to all Senior Indebtedness of the
Sponsor, as further provided therein and pari passu with any guarantee now or
hereafter entered into by the Sponsor in respect of any preferred or capital
securities of any Affiliate of the Sponsor similar to the Trust.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Trust
Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
Unless the Property Trustee's Certificate of Authentication
hereon has been properly executed, the Trust Preferred Securities evidenced by
this Certificate shall not be entitled to any benefit under the Agreement or be
valid or obligatory for any purpose.
A1-2
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of ___________, ______.
DTE ENERGY TRUST I
By:
--------------------------------------
Name:
Title: Administrative Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Agreement
Dated ________, ______
The Bank of New York,
as Property Trustee
By:
--------------------------------------
Authorized Signatory
A1-3
Distributions payable on each Trust Preferred Security will be
fixed at a rate per annum of 7.8% (the "Coupon Rate") of the stated liquidation
amount of $25 per Trust Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has actually received and holds
funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year consisting of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, Distributions on the
Trust Preferred Securities will be cumulative, will accrue from January 15, 2002
and will be payable quarterly in arrears, on February 1, May 1, August 1 and
November 1 of each year, commencing on May 1, 2002, to holders of record on the
relevant record dates, which will be, as long as the Trust Preferred Securities
remain in book-entry form, one Business Day prior to such payment date, which
payment dates shall correspond to the interest payment dates on the Debentures.
In the event that the Trust Preferred Securities are not in book-entry form, the
record date will conform to the rules of any securities exchange on which the
securities are listed and, if none, as shall be selected by the Administrative
Trustees, which dates will be at least more than one, but less than 60 Business
Days before the relevant payment date, which payment dates shall correspond to
the interest payment dates on the Debentures. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period"), provided that no Extension
Period shall last beyond the date of the maturity of the Debentures and, as a
consequence of such deferral, quarterly Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may shorten or further extend
such Extension Period; provided that such Extension Period together with all
such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements and the Indenture.
The Trust Preferred Securities shall be redeemable as provided
in the Agreement.
A1-4
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.
Dated:
-----------------------
Signature:
------------------------------------------
Signature Guarantee:
--------------------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
▇▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ SECURITY CERTIFICATE
The Common Securities may only be transferred by the Debenture
Issuer and any Related Party to the Debenture Issuer or a Related Party of the
Debenture Issuer; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Certificate Number 1 Number of Common Securities 222,681
Certificate Evidencing Common Securities
of
DTE Energy Trust I
7.8% Common Securities
(liquidation amount $25 per Common Security)
DTE Energy Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that DTE
Energy Company (the "Holder") is the registered owner of 222,681common
securities of the Trust representing common undivided beneficial interests in
the assets of the Trust designated as the 7.8% Common Securities (liquidation
amount $25 per common security) (the "Common Securities"). The Common Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Trust Agreement of the Trust dated as of January 15, 2002,
as the same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Common Securities as set forth in Exhibit A to
the Agreement. Capitalized terms used herein but not defined shall have the
meaning given them in the Agreement. The Holder is entitled to the benefits of
the Common Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Agreement, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
A2-1
Upon receipt of this certificate, the Sponsor is bound by the
Agreement and is entitled to the benefits thereunder.
In addition, the Holder is deemed to have (i) agreed to the
terms of the Indenture and the Debentures, including that the Debentures are
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) as and to the extent provided in the
Indenture and (ii) agreed to the terms of the Common Securities Guarantee,
including that the Common Securities Guarantee is subordinate and junior in
right of payment to all Senior Indebtedness of the Sponsor, as further provided
therein, and pari passu with any guarantee now or hereafter entered into by the
Sponsor in respect of any common securities of any Affiliate of the Sponsor
similar to the Trust.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
A2-2
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of ________, ____.
DTE ENERGY TRUST I
By:
----------------------------------------
Name:
Title: Administrative Trustee
A2-3
Distributions payable on each Common Security will be fixed at
a rate per annum of 7.8% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the Coupon
Rate ("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee and to the extent
the Property Trustee has actually received and holds funds available therefor.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the
Common Securities will be cumulative, will accrue from January 15, 2002 and will
be payable quarterly in arrears, on February 1, May 1, August 1 and November 1
of each year, commencing on May 1, 2002, to Holders of record on the relevant
record dates, which will be, as long as the Common Securities remain in
book-entry form, one Business Day prior to such payment dates, which payment
dates shall correspond to the interest payment dates on the Debentures. The
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period from time to time on the Debentures for
a period not exceeding 20 consecutive quarters (each an "Extension Period"),
provided that no Extension Period shall last beyond the date of the maturity of
the Debentures and, as a consequence of such deferral, quarterly Distributions
will also be deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Debenture Issuer may
shorten or further extend such Extension Period; provided that such Extension
Period together with all such previous and further extensions thereof may not
exceed 20 consecutive quarters or extend beyond the maturity date of the
Debentures. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Agreement.
A2-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common 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 Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Dated:
-----------------------
Signature:
------------------------------------------
Signature Guarantee:
--------------------------------
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
A2-5