Draft--3/7/98
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AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
DURA AUTOMOTIVE SYSTEMS, INC.
AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC.
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MARCH __, 1998
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
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TABLE OF CONTENTS
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ARTICLE 1
DEFINED TERMS
SECTION 1.1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 2.3. ORGANIZATIONAL EXPENSES. . . . . . . . . . . . . . . . . . .11
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES . . . . . . . . . . . .11
SECTION 2.5. SUBSCRIPTION AND PURCHASE OF DEBENTURES;
ISSUANCE OF THE COMMON SECURITIES. . . . . . . . . . . . . .12
SECTION 2.6. DECLARATION OF TRUST . . . . . . . . . . . . . . . . . . . .12
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS . . . . . .12
SECTION 2.8. ASSETS OF TRUST. . . . . . . . . . . . . . . . . . . . . . .16
SECTION 2.9. TITLE TO TRUST PROPERTY. . . . . . . . . . . . . . . . . . .16
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT. . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 4.2. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 4.3. CONVERSION . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 4.4. SPECIAL EVENT EXCHANGE OR REDEMPTION . . . . . . . . . . . .21
SECTION 4.5. SUBORDINATION OF COMMON SECURITIES . . . . . . . . . . . . .23
SECTION 4.6. PAYMENT PROCEDURES.. . . . . . . . . . . . . . . . . . . . .24
SECTION 4.7. TAX RETURNS AND REPORTS. . . . . . . . . . . . . . . . . . .24
SECTION 4.8. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. . . . . . . . .24
SECTION 4.9. PAYMENTS UNDER INDENTURE . . . . . . . . . . . . . . . . . .24
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP. . . . . . . . . . . . . . . . . . . . . .24
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES. . . . . . . . . . . . . .25
SECTION 5.3. DELIVERY OF TRUST SECURITIES CERTIFICATES. . . . . . . . . .25
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS . . . . . . . . . . . . . . .27
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES . . .27
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SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . .27
SECTION 5.9. APPOINTMENT OF PAYING AGENT. . . . . . . . . . . . . . . . .27
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. . . . . . . . .28
SECTION 5.11. GLOBAL SECURITIES; NON-GLOBAL SECURITIES;
COMMON SECURITIES CERTIFICATE. . . . . . . . . . . . . . . .28
SECTION 5.12. NOTICES TO CLEARING AGENCY . . . . . . . . . . . . . . . . .29
SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES . . . . . . . .29
SECTION 5.14. RIGHTS OF SECURITYHOLDERS. . . . . . . . . . . . . . . . . .30
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS . . . . . . . . . . . . . . . .30
SECTION 6.2. NOTICE OF MEETINGS . . . . . . . . . . . . . . . . . . . . .32
SECTION 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS. . . . . . . . . . . .32
SECTION 6.4. VOTING RIGHTS. . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 6.5. PROXIES, ETC.. . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT . . . . . . . . . .33
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES. . . . . . . . . .33
SECTION 6.8. ACTS OF SECURITYHOLDERS. . . . . . . . . . . . . . . . . . .33
SECTION 6.9. INSPECTION OF RECORDS. . . . . . . . . . . . . . . . . . . .35
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . .35
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. . . . . . . . .36
ARTICLE 8
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . . .36
SECTION 8.2. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . .38
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE . . . . . . . . . . . . .39
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES . . .41
SECTION 8.5. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . . . . .42
SECTION 8.6. COMPENSATION; INDEMNITY; FEES. . . . . . . . . . . . . . . .42
SECTION 8.7. PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES . . . . .42
SECTION 8.8. CONFLICTING INTERESTS. . . . . . . . . . . . . . . . . . . .43
SECTION 8.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . . .43
SECTION 8.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . . .45
SECTION 8.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 8.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. . . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 8.13. REPORTS BY PROPERTY TRUSTEE. . . . . . . . . . . . . . . . .45
SECTION 8.14. REPORTS TO THE PROPERTY TRUSTEE. . . . . . . . . . . . . . .46
SECTION 8.15. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT . . . . . .46
SECTION 8.16. NUMBER OF TRUSTEES . . . . . . . . . . . . . . . . . . . . .46
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SECTION 8.17. DELEGATION OF POWER. . . . . . . . . . . . . . . . . . . . .47
ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE . . . . . . . . . . . . . .47
SECTION 9.2. EARLY DISSOLUTION. . . . . . . . . . . . . . . . . . . . . .47
SECTION 9.3. DISSOLUTION. . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 9.4. LIQUIDATION. . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. . . . . . . . . . . . . . . . . .49
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS. . . . . . . . . . .50
SECTION 10.2. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 10.3. SEPARABILITY . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 10.4. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY . . . . . . . . . . . . . .52
SECTION 10.6. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 10.7. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 10.8. REPORTS, NOTICES AND DEMANDS . . . . . . . . . . . . . . . .52
SECTION 10.9. AGREEMENT NOT TO PETITION. . . . . . . . . . . . . . . . . .52
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE. . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 10.12. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . .53
EXHIBIT A -- Certificate of Trust of
Dura Automotive Systems Capital Trust
EXHIBIT B -- Form of Certificate
Depositary Agreement
EXHIBIT C -- Form of Common Securities of
Dura Automotive Systems Capital Trust
EXHIBIT D -- Form of Preferred Securities of
Dura Automotive Systems Capital Trust
EXHIBIT E -- Notice of Conversion
iii
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
Certain Sections of this Trust Agreement
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . .8.7
(a)(2). . . . . . . . . . . . . . . . . . . .8.7
(a)(3). . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . .2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . .8.8
Section 311 (a) . . . . . . . . . . . . . . . . . . . . .8.12
(b) . . . . . . . . . . . . . . . . . . . . .8.12
Section 312 (a) . . . . . . . . . . . . . . . . . . . . .5.7
(b) . . . . . . . . . . . . . . . . . . . . .5.7
(c) . . . . . . . . . . . . . . . . . . . . .5.7
Section 313 (a) . . . . . . . . . . . . . . . . . . . . .8.13(a)
(c) . . . . . . . . . . . . . . . . . . . . .10.8
(d) . . . . . . . . . . . . . . . . . . . . .8.13(c)
(a)(4). . . . . . . . . . . . . . . . . . . .8.13(b)
(b) . . . . . . . . . . . . . . . . . . . . .8.13(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . .8.14
(b) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . .8.15
(c)(2). . . . . . . . . . . . . . . . . . . .8.15
(c)(3). . . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . .1.1, 8.15
Section 315 (a) . . . . . . . . . . . . . . . . . . . . .8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . . . . . .8.2, 10.8
(c) . . . . . . . . . . . . . . . . . . . . .8.1(a)
(d) . . . . . . . . . . . . . . . . . . . . .8.1, 8.3
(e) . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 316 (a) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . .Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . .6.7
Section 317 (a)(1). . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . .5.9
Section 318 (a) . . . . . . . . . . . . . . . . . . . . .10.10
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* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
iv
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March __, 1998
among: (i) Dura Automotive Systems, Inc., a Delaware corporation (including any
successors or assigns, the "Depositor"); (ii) The First National Bank of
Chicago, a national banking association, as property trustee (in such capacity,
the "Property Trustee" and, in its personal capacity and not in its capacity as
Property Trustee, the "Bank"); (iii) First Chicago Delaware Inc. a corporation
duly organized and existing under the laws of the State of Delaware, as Delaware
trustee (in such capacity, the "Delaware Trustee"); (iv) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, each of whose address is c/o Dura
Automotive Systems, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (each, an "Administrative Trustee" and, collectively, the
"Administrative Trustees" and, collectively with the Property Trustee and
Delaware Trustee, the "Trustees") and (iv) the several Holders as hereinafter
defined.
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and created a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
March 2, 1998 (the "Original Trust Agreement"), and by the execution and filing
by certain of the Trustees with the Secretary of State of the State of Delaware
of the Certificate of Trust, filed on March 2, 1998, attached as Exhibit A, for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in the Debentures (as defined herein); and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance and sale of the Common Securities (as defined herein)
by the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement (each as defined
herein) and (iii) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders of the Preferred Securities, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
1
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"ACT" has the meaning specified in Section 6.8.
"ADDITIONAL AMOUNT" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on the Debentures.
"ADDITIONAL SUMS" means, with respect to the Trust Securities, the
amount of Additional Sums (as defined in the Indenture) paid by the Depositor on
the Debentures.
"ADMINISTRATIVE TRUSTEE" means each of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, each solely in his capacity as Administrative Trustee
of the Trust and not in his individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor in interest
in such capacity, or any successor administrative trustee appointed as herein
provided.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however that an Affiliate of the
Depositor shall be deemed not to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of Euroclear and Cedel, and of the Clearing Agency for such
security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
2
(b) the institution by such Person of proceedings to be adjudicated
as bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.9.
"BOARD OF DIRECTORS" means either the board of directors of the
Depositor or any committee of that board duly authorized to act hereunder.
"BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of Chicago are authorized or required
by law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the corporate trust office of the Debenture
Trustee, is closed for business.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates substantially in the form attached as Exhibit B, as the same may be
amended and supplemented from time to time.
"CERTIFICATED PREFERRED SECURITY" has the meaning specified in
Section 5.2.
"CLASS A COMMON STOCK" means the Class A Common Stock, $.01 par value
per share, of the Depositor.
"CLASS B COMMON STOCK" means the Class B Common Stock, $.01 par value
per share, of the Depositor.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
3
"CLOSING DATE" means the first Time of Delivery (as defined in the
Underwriting Agreement), which date is also the date of execution and delivery
of this Trust Agreement.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"COMMON SECURITY" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $25 and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"COMMON STOCK" means the Class A Common Stock and Class B Common
Stock.
"CONVERSION AGENT" has the meaning specified in Section 4.3.
"CONVERSION DATE" has the meaning specified in Section 4.3.
"CONVERSION PRICE" has the meaning specified in Section 4.3.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
The First National Bank of Chicago, Mail Suite 0129, Chicago, Illinois
60670-0129.
"CURRENT MARKET PRICE," with respect to Common Stock, means for any
day the last reported sale price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the New York Stock Exchange
Composite Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if Common Stock is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which Common Stock may be
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose or, if not so available in such manner, as otherwise determined
in good faith by the Board of Directors.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined in
the Indenture.
4
"DEBENTURE REDEMPTION DATE" means, with respect to any Debentures to
be redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"DEBENTURE TRUSTEE" means The First National Bank of Chicago, a
national banking association, as trustee under the Indenture.
"DEBENTURES" means all of the Depositor's ___% junior convertible
subordinated debentures, $51.5 million principal amount, issued pursuant to the
Indenture ($59,225,000 principal amount of the Underwriters' over-allotment
option is exercised in full).
"DEFINITIVE PREFERRED SECURITIES CERTIFICATES" means either or both
(as the context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et. seq., as it may be amended from time
to time.
"DELAWARE TRUSTEE" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement.
"DIRECT ACTION" has the meaning specified in Section 6.8.
"DISTRIBUTION DATE" has the meaning specified in Section 4.1(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DURA OPERATING CORP." means Dura Operating Corp, AN operating
subsidiary of the Company.
"EARLY DISSOLUTION EVENT" has the meaning specified in Section 9.2.
"EVENT OF DEFAULT" means the occurrence of a Debenture Event of
Default, whatever the reason for such Debenture Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.
"EXCHANGE NOTICE" has the meaning specified in Section 4.4(b).
"EXPIRATION DATE" has the meaning specified in Section 9.1.
5
"GLOBAL CERTIFICATE" means a Preferred Security that is registered in
the Securities Register in the name of a Clearing Agency or a nominee thereof.
"GUARANTEE" means the Guarantee Agreement executed and delivered by
the Depositor and The First National Bank of Chicago, a national banking
association, as guarantee trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the Holders of the
Preferred Securities, as amended from time to time.
"HOLDER" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"INDENTURE" means the Junior Convertible Subordinated Indenture, dated
as of March __, 1998 between the Depositor and the Debenture Trustee, as amended
or supplemented from time to time.
"INVESTMENT COMPANY EVENT" means the receipt by the Property Trustee,
on behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having
a national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a 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"), there is more than
an insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under this Trust Agreement.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIQUIDATION AMOUNT" means an amount with respect to the assets of the
Trust equal to $25 per Trust Security.
"LIQUIDATION DATE" means each date on which Debentures or cash are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.4(a).
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section
9.4(d).
"1940 ACT" means the Investment Company Act of 1940, as amended.
"NOTICE OF CONVERSION" means the notice given by a Holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Security for Debentures and to convert such Debentures into Class
A Common Stock on behalf of such holder. Such notice is substantially in the
form set forth in Exhibit E.
6
"OFFICERS' CERTIFICATE" means a certificate signed by (i) the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 8.15 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant of condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
Any Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each individual signing the Opinion of Counsel
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the Opinion of
Counsel;
(c) a statement that each individual has made such examination or
investigation as 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 each such
individual, such condition or covenant has been complied with.
"OPTIONAL REDEMPTION PRICE" means with respect to the Preferred
Securities (except as set forth below with respect to redemption upon the
occurrence of a Tax Event), the following percentages of the Liquidation Amounts
thereof, plus accumulated and unpaid Distributions, if any, to the date fixed
for redemption if redeemed during the twelve-month period commencing March __ in
each of the following years indicated:
7
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
In the event of a redemption of Trust Securities upon the occurrence
of a Tax Event, Trust Securities shall be redeemed at the redemption price of
$25 per Trust Security and all accumulated and unpaid Distributions, if any, to
the date fixed for redemption.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the recitals
to this Trust Agreement.
"OUTSTANDING," when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation or tendered for
conversion;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent for the Holders of such Trust Securities; provided
that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement;
(c) Trust Securities which have been exchanged for Debentures
pursuant to Section 4.4; and
(d) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be fully protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Trust Securities that a Responsible Officer of the Property Trustee
or the Delaware Trustee, or an individual Administrative Trustee, as the case
may be, actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the Outstanding Trust
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Trust Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
8
of the Securities Registrar the pledgee's right so to act with respect to such
Trust Securities and that the pledgee is not the Depositor or any Affiliate of
the Depositor.
"OWNER" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.9.
"PAYMENT ACCOUNT" means a segregated non-interest bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Section 4.1.
"PERSON" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"PREFERRED SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"PREFERRED SECURITY" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"PROPERTY TRUSTEE" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"REDEMPTION DATE" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"REDEMPTION PRICE" means, with respect to any Trust Security, $25 per
Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"RELEVANT TRUSTEE" has the meaning specified in Section 8.9.
"RESPONSIBLE OFFICER" means any officer assigned to the Corporate
Trust Office, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Property Trustee or the Delaware Trustee customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Trust Agreement, and also,
with respect to a
9
particular matter, any other officer, to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.4.
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
shall be deemed to be a beneficial owner within the meaning of the Delaware
Business Trust Act.
"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SUCCESSOR PROPERTY TRUSTEE" has the meaning specified in Section 8.9.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning specified in Section 8.9.
"SUCCESSOR SECURITIES" has the meaning specified in Section 9.5.
"SUPER MAJORITY" has the meaning specified in Section 8.2.
"TAX EVENT" means the receipt by the Property Trustee, on behalf of
the Trust, of an Opinion of Counsel, rendered by a law firm having a national
tax and securities practice (which Opinion of Counsel shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement and does not pertain to the
use of the proceeds of the issuance of the Debentures, there is more than an
insubstantial risk in each case after the date thereof that (i) the Trust is, or
will be within 90 days after the date thereof, subject to United State Federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or will not be,
within 90 days after the date thereof, deductible, in whole or in part, for
United States Federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date thereof, subject to more than DE MINIMIS amount of
other taxes, duties, assessments or other governmental charges.
"TRUST" means the Delaware business trust continued hereby and
identified on the cover page of this Trust Agreement.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement any such modification, amendment or supplement,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Trust Agreement and any such modification, amendment or supplement,
respectively.
10
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing to be held by the Property Trustee pursuant to the terms of this
Trust Agreement for the benefit of the Securityholders.
"TRUST SECURITY" means any one of the Common Securities or the
Preferred Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates, the Global Certificates or the Certificated Preferred Securities.
"TRUSTEES" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, date as of
March __, 1998 among the Trust, the Depositor, Dura Operating Corp. and the
Underwriters named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME. The Trust continued hereby shall be known as
"Dura Automotive Systems Capital Trust," as such name may be modified from time
to time by the Administrative Trustees following written notice to the Holders
of Trust Securities and the other Trustees, in which name the Trustees may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The address of the Delaware Trustee in the State of Delaware is ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Depositor. The principal executive office of the Trust is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.3. ORGANIZATIONAL EXPENSES. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES. On March __,
1998, the Depositor on behalf of the Trust executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, in an aggregate
amount of 2,000,000 (2,300,000 if the Underwriters' over-allotment option is
exercised
11
in full) Preferred Securities having an aggregate Liquidation Amount of
$50,000,000 ($57,500,000 if the Underwriters' over-allotment option is exercised
in full), against receipt of the aggregate purchase price of such Preferred
Securities of $50,000,000 ($57,500,000 if the Underwriters' over-allotment
option is exercised in full), which amount the Administrative Trustees shall
promptly deliver to the Property Trustee.
SECTION 2.5. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF
THE COMMON SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered in the name
of the Property Trustee (in its capacity as such) and having an aggregate
principal amount equal to $50,000,000 ($57,500,000 if the Underwriters'
over-allotment option is exercised in full), and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the sum of $50,000,000 ($57,000,000 if the
Underwriters' over-allotment option is exercised in full). Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates registered in the name of the Depositor, in an aggregate amount of
60,000 (69,000 if the Underwriters' over-allotment option is exercised in full)
Common Securities having an aggregate Liquidation Amount of $1,500,000
($1,725,000 if the Underwriters' over-allotment option is exercised in full)
against receipt of the aggregate purchase price of such Common Securities from
the Depositor of [Debentures, registered in the name of the Property Trustee (in
its capacity as such) and having an aggregate principal amount equal to
$1,500,000 ($1,725,000 if the Underwriters' over-allotment option is exercised
in full)].
SECTION 2.6. DECLARATION OF TRUST. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, (b) to distribute the Trust's
income as provided in this Trust Agreement 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, mortgage or pledge any
of its assets 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. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property upon and subject to
the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the other Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in Section 2.6
and paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the exclusive power, duty and
the authority to cause the Trust to engage in the following activities:
12
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) to issue and sell the Trust Securities; provided, however,
that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities; provided,
further, that there shall be no interests in the Trust other than the
Trust Securities, and the issuance of Trust Securities shall be
limited to simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date and any other date Preferred
Securities and Common Securities are sold pursuant to the
over-allotment option granted to the Underwriters named in the
Underwriting Agreement, subject to the issuance of Trust Securities
pursuant to Section 5.5 and Successor Securities pursuant to
Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Certificate Depository
Agreement and such other agreements as may be necessary or incidental
to the purposes and function of the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges, if any, as shall be determined
by the Depositor and the registration of the Preferred Securities
under the Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing (only to the extent that such
listing or registration is requested by the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating agent in accordance with this Trust Agreement;
(F) to the extent provided in this Trust Agreement, to wind up
the affairs of and liquidate the Trust and prepare, execute and file
the certificate of cancellation with the Secretary of State of the
State of Delaware;
(G) unless otherwise required by the Delaware Business Trust Act
or the Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any other Administrative Trustees) any
documents that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(H) to take any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement including, but not
limited to:
13
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the 1940 Act;
(ii) causing the Trust to be classified for United States
Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Depositor to ensure that the
Debentures will be treated as indebtedness of the Depositor for
United States Federal income tax purposes;
provided that such action does not adversely affect in any material
respect the interests of Securityholders except as otherwise provided
in Section 10.2(a).
(iv) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
14
(J) subject to this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 2.7(a)(i); and
(K) to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust shall not, and the Trustees shall not, cause
the Trust to (i) invest any proceeds received by the Trust from holding the
Debentures (rather, the Trustees shall distribute all such proceeds to the
Securityholders pursuant to the terms of this Trust Agreement and the Trust
Securities), acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided herein,
(iii) take any action that would cause the Trust to fail or cease to qualify as
a "grantor trust" for United States Federal income tax purposes, (iv) make any
loans or incur any indebtedness for borrowed money or issue any other debt, (v)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property, (vi) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Trust Securities in any way
whatsoever except as permitted by the terms of this Trust Agreement, or (vii)
issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Trust Securities. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following actions (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to file by the Trust with the Commission and to execute on
behalf of the Trust a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto;
(ii) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for resale all or part of
the Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States and foreign
jurisdictions;
(iii) to the extent necessary, to prepare for filing by the Trust with
the Commission and to execute on behalf of the Trust a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended, including any amendments thereto (it being understood
15
that neither the Trust nor the Depositor has any obligation under the
Indenture, the Underwriting Agreement\ or the Trust Agreement to register
any Trust Securities under the Securities Exchange Act of 1934, as amended
or to list any Trust Securities on any securities exchange);
(iv) to negotiate, and to execute and deliver, on behalf of the Trust,
the Underwriting Agreement; and
(v) any other actions necessary or incidental to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or taxed as a corporation
for United States Federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect in
any material respect the interests of the Holders of the Preferred Securities
except as otherwise provided in Section 10.2(a).
SECTION 2.8. ASSETS OF TRUST. The assets of the Trust shall consist
of only the Trust Property.
SECTION 2.9. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust
Agreement. The Securityholders 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.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT. (a) On or prior to the Closing Date,
the Property Trustee shall establish the Payment Account. The Property Trustee
and any agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the
16
Debentures. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative, and shall accrue from the date of original
issuance, or the most recent Distribution Date (as defined herein) and, except
in the event that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable quarterly
in arrears on __________ __, __________ __, __________ __, and __________ __ of
each year, commencing on March __, 1998 (which dates correspond to the interest
payment dates on the Debentures), when, as and if available for payment by the
Property Trustee, as further described in paragraph (c) of this Section 4.1. If
any date on which Distributions are otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distributions shall be made on the
next succeeding day which is a Business Day (and no interest shall accrue for
the period from and after such date until the next succeeding Business Day) with
the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and the Distributions on the Trust Securities shall be payable
at a rate of ___% per annum of the Liquidation Amount of the Trust Securities,
such rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. For periods
less than a full month, Distributions shall reflect interest on Debentures
computed on the basis of the actual number of elapsed days based on a 360-day
year. The amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the date which is the fifteenth day (whether or not a Business Day) next
preceding such Distribution Date.
SECTION 4.2. REDEMPTION. (a) Upon an optional redemption (as set
forth in the Indenture) of Debentures, the proceeds from such redemption shall
be applied to redeem Trust Securities having an aggregate Liquidation Amount
equal to the aggregate principal amount of the Debentures so redeemed by the
Depositor, including pursuant to Section 4.4, at the Optional Redemption Price,
and upon a mandatory redemption (as set forth in the Indenture) of Debentures,
the proceeds from such redemption shall be applied to redeem Trust Securities,
having an aggregate Liquidation Amount equal to the aggregate principal amount
of the Debentures so redeemed by the Depositor, at the Redemption Price. The
Trust may not redeem fewer than all the Outstanding Trust
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Securities unless all accrued and unpaid Distributions have been paid on all
Trust Securities for all quarterly Distribution periods terminating on or prior
to the date of redemption.
(b) Notice of redemption (which notice will be irrevocable) shall be given
by the Property Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to the Depositor and
each Holder of Trust Securities to be redeemed, at such Holder's address as it
appears in the Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as the
case may be;
(iii) the record date for the determination of Holders entitled to
receive payment of the Redemption Price or Optional Redemption Price, as
the case may be, as provided in Section 4.2(d);
(iv) the CUSIP number;
(v) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(vi) the Conversion Price and that a Holder of Preferred Securities
who desires to convert such Preferred Securities called for redemption must
satisfy the requirements for conversion contained in Section 4.3 below;
(vii) that on the Redemption Date the Redemption Price or the Optional
Redemption Price, as the case may be, will become due and payable upon each
such Trust Security to be redeemed and that Distributions thereon will
cease to accrue on and after said date; and
(viii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional Redemption
Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the case
may be, with the proceeds from the contemporaneous redemption of Debentures.
Redemptions of the Trust Securities shall be made and the Redemption Price or
the Optional Redemption Price, as the case may be, shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Redemption Price or the
Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, Chicago time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, so long as and to the
extent the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to
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pay the applicable Redemption Price. If the Preferred Securities are no longer
in book-entry-only form, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price or Optional Redemption Price, as the case may be, on such
Preferred Securities held in certificated form and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price or the
Optional Redemption Price, as the case may be, to the Holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required,
then, upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except (i) the right of such
Securityholders to receive the Redemption Price or the Optional Redemption
Price, as the case may be, but without interest, and (ii) the right to convert
such Preferred Securities into Class A Common Stock in the manner provided in
Section 4.3 through the close of business on the Redemption Date; and such Trust
Securities will cease to be Outstanding. In the event that any date on which
any Redemption Price or the Optional Redemption Price, as the case may be, is
payable is not a Business Day, then payment of the Redemption Price or the
Optional Redemption Price, as the case may be, payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next 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. Payment of the Redemption Price or the Optional
Redemption Price, as the case may be, shall be made to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be the date which is the fifteenth day
(whether or not a Business Day) preceding such Redemption Date.
(e) If less than all the Outstanding Trust Securities are to be redeemed
on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated on a PRO RATA basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities that are to be
redeemed. The particular Preferred Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption, by
lot or by such other method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of the Preferred Securities. The Property Trustee shall
promptly notify the Securities Registrar and the Conversion Agent in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed; it being understood that, in the case of Preferred
Securities registered in the name of and held of record by the Clearing Agency
(or any successor) or any nominee, the distribution of the proceeds of such
redemption will be made in accordance with the procedures of the Clearing Agency
or its nominee. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed. In the event of any redemption
in part, the Trust shall not be required to (i) issue, register the transfer of
or exchange of any Preferred Security during a period beginning at the opening
of
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business 15 days before any selection for redemption of Preferred Securities and
ending at the close of business on the earliest date in which the relevant
notice of redemption is deemed to have been given to all Holders of Preferred
Securities to be so redeemed or (ii) register the transfer of or exchange of any
Preferred Securities so selected for redemption, in whole or in part, except for
the unredeemed portion of any Preferred Securities being redeemed in part.
(f) In the event of any redemption, the Trust shall not be required to
issue, register the transfer of or register the exchange of any Preferred
Security during a period beginning at the opening of business 15 days before any
Redemption Date and ending at the close of business on such Redemption Date.
SECTION 4.3. CONVERSION. The Holders of Trust Securities, subject
to the limitations set forth in this Section, shall have the right, at their
option, to cause the Conversion Agent to convert Trust Securities, on behalf of
the converting Holders, into shares of Class A Common Stock in the manner
described herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully paid and
nonassessable shares of Class A Common Stock pursuant to the Holder's
direction to the Conversion Agent to exchange such Trust Securities for a
portion of the Debentures having a principal amount equal to the aggregate
Liquidation Amount of such Trust Securities, and immediately convert such
amount of Debentures into fully paid and nonassessable shares of Class A
Common Stock at an initial rate of______ shares of Class A Common Stock for
each Trust Security (which is equivalent to a conversion price of
approximately $ _____ per $25 principal amount of Debentures), subject to
certain adjustments set forth in the Indenture (as so adjusted, "Conversion
Price").
(ii) In order to convert Trust Securities into Class A Common Stock,
the Holder of such Trust Securities shall submit to the Conversion Agent an
irrevocable Notice of Conversion to convert Trust Securities on behalf of
such Holder, together, if the Trust Securities are in certificated form,
with such certificates. The Notice of Conversion shall (i) set forth the
number of Trust Securities to be converted and the name or names, if other
than the Holder, in which the shares of Class A Common Stock should be
issued and (ii) direct the Conversion Agent (a) to exchange such Trust
Securities for a portion of the Debentures held by the Property Trustee (at
the rate of exchange specified in the preceding paragraph) and (b) to
immediately convert such Debentures, on behalf of such Holder, into Class A
Common Stock (at the conversion rate specified in the preceding paragraph).
The Conversion Agent shall notify the Property Trustee in writing of the
Holder's election to exchange Trust Securities for a portion of the
Debentures held by the Property Trustee and the Property Trustee shall,
upon receipt of such written notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with
this Section. The Conversion Agent shall thereupon notify the Depositor of
the Holder's election to convert such Debentures into shares of Class A
Common Stock. Holders of Trust Securities at the close of business on a
Distribution payment record date will be entitled to receive the
Distribution paid on such Trust Securities on the corresponding
Distribution Date notwithstanding the conversion of such Trust Securities
on or following such record date but prior to such Distribution Date.
Except as provided above, neither the Trust nor the Depositor will make, or
be required to make, any payment, allowance or adjustment upon
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any conversion on account of any accumulated and unpaid Distributions
whether or not in arrears accrued on the Trust Securities surrendered for
conversion, or on account of any accumulated and unpaid dividends on the
shares of Class A Common Stock issued upon such conversion. Trust
Securities submitted for conversion prior to the expiration of conversion
rights as provided in Section 4.3(iii) shall be deemed to have been
converted immediately prior to the close of business on the day on which an
irrevocable Notice of Conversion relating to such Trust Securities is
received by the Conversion Agent in accordance with the foregoing provision
(the "Conversion Date"). The Person or Persons entitled to receive the
Class A Common Stock issuable upon conversion of the Debentures shall be
treated for all purposes as the record holder or holders of such Class A
Common Stock on the date of conversion. As promptly as practicable on or
after the Conversion Date, the Depositor shall issue and deliver at the
office of the Conversion Agent a certificate or certificates for the number
of full shares of Class A Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any
share to the Person or Persons entitled to receive the same, unless
otherwise directed by the Holder in the notice of conversion and the
Conversion Agent shall distribute such certificate or certificates to such
Person or Persons.
(iii) The conversion rights of holders of the Debentures and the
corresponding conversion rights of Holders of Trust Securities shall expire
at the close of business on the date set for redemption of the Trust
Securities upon the mandatory or optional redemption of the Debentures.
(iv) Each Holder of a Trust Security by its acceptance thereof
initially appoints The First National Bank of Chicago not in its individual
capacity but solely as conversion agent (the "Conversion Agent") for the
purpose of effecting the conversion of Trust Securities in accordance with
this Section. In effecting the conversion and transactions described in
this Section, the Conversion Agent shall be acting as agent of the Holders
of Trust Securities directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized (i) to exchange Trust Securities
from time to time for Debentures held by the Trust in connection with the
conversion of such Trust Securities in accordance with this Section and
(ii) to convert all or a portion of the Debentures into Class A Common
Stock and thereupon to deliver such shares of Class A Common Stock in
accordance with the provisions of this Section and to deliver to the
Property Trustee any new Debenture or Debentures for any resulting
unconverted principal amount delivered to the Conversion Agent by the
Debenture Trustee.
(v) No fractional shares of Class A Common Stock will be issued as a
result of conversion, but, in lieu thereof, such fractional interest will
be paid in cash by the Depositor to the Conversion Agent in an amount equal
to the Current Market Price of the fractional share of the Class A Common
Stock, and the Conversion Agent will in turn make such payment to the
Holder or Holders of Trust Securities so converted.
(vi) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Trust Agreement or otherwise required of the Property
Trustee or the Trust to pay any amounts on account of such withholdings.
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SECTION 4.4. SPECIAL EVENT EXCHANGE OR REDEMPTION. (a)If a Special
Event shall occur and be continuing, the Property Trustee shall direct the
Conversion Agent to exchange all Outstanding Trust Securities for Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities to be exchanged and with accrued interest in an amount equal to any
unpaid Distribution (including any Additional Amounts) on the Trust Securities;
provided, however, that, in the case of a Tax Event, the Depositor shall have
the right to (i) direct that less than all, or none, as appropriate, of the
Trust Securities be so exchanged if and for so long as the Depositor shall have
elected to pay any Additional Sums (as defined in the Indenture) such that the
amount received by Holders of Trust Securities not so exchanged in respect of
Distributions and other distributions are not reduced as a result of such Tax
Event, and shall not have revoked any such election or failed to make such
payments or (ii) cause the Trust Securities to be redeemed in the manner set
forth below. If a Tax Event shall occur or be continuing, the Depositor shall
have the right, upon not less than 30 nor more than 60 days' notice, to redeem
the Debentures, in whole or in part, for cash upon the later of (i) 90 days
following the occurrence of such Tax Event or (ii) March __, 2028. Promptly
following such redemption, Trust Securities with an aggregate Liquidation Amount
equal to the aggregate principal amount of the Debentures so redeemed will be
redeemed by the Trust at the Optional Redemption Price applicable in the event
of a redemption upon the occurrence of a Tax Event on a pro rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be irrevocable,
will be given by the Property Trustee by first-class mail to the Depositor and
to each record Holder of Trust Securities to be exchanged not fewer than 30 nor
more than 60 days prior to the date fixed for exchange thereof. For purposes of
the calculation of the date of exchange and the dates on which notices are given
pursuant to this paragraph (b), an Exchange Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage prepaid, to
each Holder. Each Exchange Notice shall be addressed to each Holder of Trust
Securities at the address of such Holder appearing in the books and records of
the Trust. Each Exchange Notice shall state: (A) the exchange date; (B) the
aggregate Liquidation Amount and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so exchanged
shall be exchanged for Debentures and that Distributions on the Trust Securities
so exchanged will cease to accumulate on and after said date; (D) the record
date for the determination of Holders of Trust Securities to be exchanged as
provided in Section 4.4(g); and (E) the identity of the Conversion Agent, if
any, and the place or places where each Trust Certificate to be exchanged is to
be surrendered in exchange for Debentures. No defect in the Exchange Notice or
in the mailing thereof with respect to any Trust Security shall affect the
validity of the exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred Securities
are to be exchanged, then, on the exchange date, (i) if all of the Outstanding
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the particular Preferred Securities to be exchanged will be
selected by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption or exchange on a pro rata basis, (ii) if all of
the Outstanding Preferred Securities are represented by Book-Entry Preferred
Securities Certificates, the Property Trustee shall provide for the selection
for exchange of a portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates on a pro rata basis and (iii) if
22
Outstanding Trust Securities are represented by both Definitive Preferred
Securities Certificates and Book-Entry Preferred Securities Certificates, the
Property Trustee shall select the portion of the Global Certificate representing
the Book-Entry Preferred Securities Certificates and the particular Outstanding
Preferred Securities represented by Definitive Preferred Securities Certificates
to be exchanged on a pro rata basis. In the case of clause (ii) or (iii) above,
the particular Book-Entry Preferred Securities Certificates to be exchanged
shall be selected in accordance with the applicable rules and procedures for the
Clearing Agency in whose name, or whose nominee's name, such global certificate
is then held. Any Preferred Securities Certificate that is to be exchanged only
in part shall be surrendered with due endorsement or by a written instrument of
transfer fully executed by the Holder thereof (or its attorney duly authorized
in writing) and the Trust shall prepare and deliver to such Holder, without
service charge, a new Preferred Securities Certificate or Certificates in
aggregate stated Liquidation Amount equal to, and in exchange for, the
unredeemed portion of the Preferred Securities Certificate so surrendered. The
Common Securities shall be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the date
fixed for any such exchange, (i) if the Preferred Securities are represented by
Book-Entry Preferred Securities Certificates, the Clearing Agency or its
nominee, as the record Holder of the Preferred Securities, will exchange through
the Conversion Agent the Global Certificate representing the Preferred
Securities to be exchanged for a registered Global Certificate or certificates
representing the Debentures to be delivered upon such exchange, (ii) if the
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the certificates representing the Preferred Securities to be so
exchanged will be deemed to represent Debentures having a principal amount equal
to the aggregate stated Liquidation Amount of such Preferred Securities until
such certificates are presented to the Conversion Agent for exchange for
definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Trust Agreement pursuant to
Section 10.11 of this Trust Agreement, will be deemed to have agreed to be bound
by these exchange provisions in regard to the exchange of Trust Securities for
Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the Trust
to withhold taxes pursuant to the terms of the Trust Securities or as set forth
in this Trust Agreement or otherwise require the Property Trustee or the Trust
to pay any amounts on account of such withholdings.
(g) An exchange of Trust Securities for Debentures pursuant to this
Section 4.4 shall be made to Holders of Trust Securities as they appear on the
Securities Register for Trust Securities on the relevant record date, which
shall be the date which is the fifteenth day (whether or not a Business Day)
preceding the exchange date.
SECTION 4.5. SUBORDINATION OF COMMON SECURITIES. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made PRO RATA
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date an Event of Default shall have
occurred and be continuing, no payment of any Distribution (including Additional
23
Amounts, if applicable) on, or the Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
SECTION 4.6. PAYMENT PROCEDURES. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency in immediately available funds, in accordance
with the Certificate Depositary Agreement on the applicable Distribution Dates.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.7. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States Federal, State and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared or
filed) Form 1041 or the appropriate Internal Revenue Service form required to
be filed in respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to each
Securityholder a Form 1099 or the appropriate Internal Revenue Service form
required to be furnished to such Securityholder or the information required to
be provided on such form. The Administrative Trustees shall provide the
Depositor with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.8. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. Upon
receipt under the Debentures of Additional Sums, the Property Trustee, upon
receipt of written notice from the Depositor or the Administrative Trustees,
shall promptly pay from such Additional Sums any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
SECTION 4.9. PAYMENTS UNDER INDENTURE. Any amount payable hereunder
to any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder (or any Owner with respect thereto) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
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SECTION 5.1. INITIAL OWNERSHIP. Upon the creation of the Trust and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES. The Preferred
Securities Certificates shall be issued in minimum denominations of $25
Liquidation Amount and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The consideration received
by the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. The Preferred Securities initially will be represented by one or more
certificates in registered, global form (collectively, the "Global
Certificate"). Preferred Securities initially transferred, in accordance with
Section 5.4, in a manner exempt from the registration requirements of the
Securities Act will be exchanged for Preferred Securities in registered,
certificated form (the "Certificated Preferred Securities"). The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and authenticated by
the Property Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. DELIVERY OF TRUST SECURITIES CERTIFICATES. On the
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Trust and delivered to or upon the written
order of the Depositor, signed by its Chairman of the Board, any Vice Chairman,
its President, any Senior Vice President or any Vice President, Treasurer or
Assistant Treasurer or Controller without further corporate action by the
Depositor, in authorized denominations.
A Trust Security Certificate shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Trust Security Certificate has
been authenticated under this Trust Agreement. Upon a written order of the
Trust signed by one Administrative Trustee, the Property Trustee shall
authenticate the Trust Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Administrative Trustees to authenticate Trust Security Certificates. An
authenticating agent may authenticate Trust Security Certificates whenever the
Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such agent.
An authenticating agent has the same rights as the Property Trustee to deal with
the Depositor or an Affiliate with respect to the authentication of Trust
Securities.
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES. The Securities Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant
25
to Section 5.8, a Securities Register in which, subject to such reasonable
regulations as it may prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar.
Subject to the other provisions of this Trust Agreement regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security at an office or agency of the Securities Registrar designated
pursuant to Section 5.8 for such purpose, an Administrative Trustee shall
execute on behalf of the Trust by manual or facsimile signature, and the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, and subject to the other provisions of
this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount, upon
surrender of the Preferred Securities to be exchanged at any such office or
agency. Whenever any Preferred Securities are so surrendered for exchange, an
Administrative Trustee shall execute on behalf of the Trust by manual or
facsimile signature, and the Property Trustee shall authenticate and deliver,
the Preferred Securities which the Holder making the exchange is entitled to
receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be entitled to the same benefits under
this Trust Agreement, as the Securities surrendered upon such registration of
transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Depositor or the
Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the Securities
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for authentication and delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like denomination.
In connection with the issuance of any new Trust Securities Certificate under
this Section, the Securities Registrar may require the payment of a sum
26
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicative Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS. The Property Trustee
and the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees or the Depositor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Trust Agreement) a list, in such form
as the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent record date (a) to the Property
Trustee, quarterly at least 5 Business Days before each Distribution Date, and
(b) to the Property Trustee, promptly after receipt by the Depositor of a
written request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, in
each case to the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities, and the corresponding rights of the
Trustee shall be as provided in the Trust Indenture Act, except to the extent
Section 3819 of the Delaware Business Trust Act would require greater access to
such information, in which case the latter shall apply. Each Holder, by
receiving and holding a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY. The Securities
Registrar shall maintain in the City of Chicago an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates The First National Bank
of Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0126,
as its principal corporate trust office for such purposes. The Securities
Registrar shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
in The City of Chicago, an office or agency (the "Paying Agent") where the
Preferred Securities may be presented for payment. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees.
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Any Paying Agent shall have the revocable power to withdraw funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent shall initially be the Property Trustee, and
any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Depositor. In the event that the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). Each successor Paying
Agent or any additional Paying Agent shall agree with the Trustees that, as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
each Securityholder. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee also in its role
as Paying Agent, for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the
Closing Date provided for in Section 2.5, the Depositor shall acquire beneficial
and record ownership of the Common Securities. The Depositor has covenanted in
the Indenture to maintain directly or indirectly 100% ownership of the Common
Securities; provided that any permitted successor of the Company under the
Indenture may succeed to the Company's ownership of the Common Securities. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities in violation of that covenant shall be void. The Administrative
Trustees shall cause each Common Securities Certificate to contain a legend
stating, "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED
BY DURA AUTOMOTIVE SYSTEMS, INC. OR TO CERTAIN SUCCESSORS OF DURA AUTOMOTIVE
SYSTEMS, INC."
SECTION 5.11. GLOBAL SECURITIES; NON-GLOBAL SECURITIES; COMMON
SECURITIES CERTIFICATE. (a) Each Global Certificate authenticated under this
Trust Agreement shall be registered in the name of the Clearing Agency
designated by the Depositor for such Global Certificate or a nominee thereof and
delivered to such Clearing Agency or a nominee thereof or custodian therefor,
and each such Global Certificate shall constitute a Preferred Security for all
purposes of this Trust Agreement.
(b) If a Global Certificate is to be exchanged for Certificated Preferred
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Clearing Agency, its nominee or custodian to the Property Trustee, as Securities
Registrar, for exchange or cancellation as provided in this Article 5. If any
Global Certificate is to be exchanged for Certificated Preferred Securities or
canceled in part, or if another Preferred Security is to be exchanged in whole
or in part for a beneficial interest in any Global Certificate, in each case, as
provided in Section 5.4, then either (i) such Global Certificate shall be so
surrendered for exchange or cancellation as provided in this
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Article 5 or (ii) the principal amount thereof (or number of Preferred
Securities represented thereby) shall be reduced or increased by an amount equal
to the portion thereof to be so exchanged or canceled, or equal to the principal
amount of (or number of securities represented by) such Certificated Preferred
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Property
Trustee, as Securities Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Certificate, an Administrative
Trustee shall execute on behalf of the Trust by manual or facsimile signature,
and the Property Trustee shall, subject to Section 5.4 and as otherwise provided
in this Article 5, authenticate and deliver any Preferred Securities issuable in
exchange for such Global Certificate (or any portion thereof) to or upon the
written order of, and registered in such names as may be directed by, the
Clearing Agency or its authorized representative. Upon the request of the
Property Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Depositor shall promptly make
available to the Property Trustee a reasonable supply of Preferred Securities
that are not in the form of Global Certificates. The Property Trustee shall be
entitled to conclusively rely upon any order, direction or request of the
Clearing Agency or its authorized representative which is given or made pursuant
to this Article 5 if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Certificate or any
portion thereof, whether pursuant to this Article 5 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Certificate,
unless such Preferred Security is registered in the name of a Person other than
the Clearing Agency for such Global Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a Global
Certificate, shall be the holder of such Global Certificate for all purposes
under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such Owner's beneficial interest
in a Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee or its participants and such owners of beneficial interests in a Global
Certificate will not be considered the owners or holders of such Global
Certificate for any purpose of this Trust Agreement or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall initially be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 5.12. NOTICES TO CLEARING AGENCY. To the extent that a
notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall give all
such notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to provide notices directly to
the Owners.
SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
Notwithstanding any other provision in this Trust Agreement, no Global
Certificate may be exchanged in whole or
29
in part for Preferred Securities registered, and no transfer of a Global
Certificate in whole or in part may be registered, in the name of any Person
other than the Clearing Agency for such Global Certificate or a nominee thereof
unless (i) such Clearing Agency (A) has notified the Trust and the Depositor
that it is unwilling or unable to continue as Clearing Agency for such Global
Certificate or (B) has ceased to be a clearing agency registered as such under
the Securities Exchange Act of 1934, as amended, and in either case the Trust
and the Depositor thereupon fail to appoint a successor Clearing Agency, (ii)
the Trust and the Depositor, at their option, notify the Property Trustee in
writing that it elects to cause the issuance of the Preferred Securities in
certificated form or (iii) there shall have occurred and be continuing an Event
of Default or any event which after notice or lapse of time or both would be an
Event of Default. In all cases, Certificated Preferred Securities delivered in
exchange for any Global Certificate or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Clearing Agency (in accordance with its customary
procedures).
SECTION 5.14. RIGHTS OF SECURITYHOLDERS. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.9, and the Securityholders shall not have any
right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights and,
when issued and delivered to Securityholders against payment of the purchase
price therefor, will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS. (a) Except as provided in
this Section, in Section 8.2 and 10.2 and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with respect to
the Preferred Securities has occurred and been subsequently cured, waived or
otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof shall apply.
During (x) the period commencing on the date of the occurrence of an Event of
Default with respect to the Preferred Securities and ending on the date when
such Event of Default is cured, waived or otherwise eliminated, or (y) any
period not described in either the preceding sentence or the preceding clause
(x), the provisions of Section 6.1(b)(i) shall apply.
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(i) The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or to exercise any trust or power conferred upon the Property
Trustee under the Trust Agreement, including the right to direct the
Property Trustee to exercise the remedies available to it as a holder of
the Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are held by
the Property Trustee, the Trustees shall not (A) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to such Debentures, (B) waive any past
default which is waivable under Section 5.13 of the Indenture, (c) exercise
any right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of a majority in aggregate Liquidation Amount of
all Outstanding Preferred Securities (except in the case of clause (D),
which consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of a majority in aggregate Liquidation
Amount of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would require
the consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each Holder of Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. The Property Trustee shall notify all Holders of
record of the Preferred Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only after
the Event of Default with respect to the Preferred Securities has been
cured, waived, or otherwise eliminated the Holders of a majority in
aggregate Liquidation Amount of the Common Securities will have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or to exercise any
trust or power conferred upon the Property Trustee under the Trust
Agreement, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures but
excluding the right to direct the Property Trustee to consent to an
amendment, modification or termination of the Indenture (which shall be
as provided below). So long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.13 of the Indenture, (c) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment,
modification or
31
termination of the Indenture or the Debentures, where such consent shall
be required, without, in each case, obtaining the prior approval of the
Holders of a majority in aggregate Liquidation Amount of all Common
Securities (except in the case of clause (D), which consent, in the
event that no Event of Default shall occur and be continuing, shall be
of the Holders of a majority in aggregate Liquidation Amount of all
Trust Securities, voting together as a single class); provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent
of each Holder of Common Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Common Securities, except by a subsequent vote of the Holders of the
Common Securities. The Property Trustee shall notify all Holders of
record of the Common Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(iii) The provisions of this Section 6.1(b) and Section 6.1(a) of this
Trust Agreement shall be in lieu of Section 316(a)(1)(A) of the Trust
Indenture Act, and such Section 316(a)(1)(A) is hereby expressly excluded
from this Trust Agreement and the Preferred Securities, as permitted by the
Trust Indenture Act.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities.
SECTION 6.2. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of the Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Preferred Securityholders of record of 25% of the
Preferred Securities (based upon their Liquidation Amount), and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of Preferred Securities to vote on any
matters as to which such Holders are entitled to vote.
32
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum at
any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of record of Preferred Securities present, in person or by proxy,
holding a majority of the Preferred Securities (based upon their Liquidation
Amount) held by Holders of record of Preferred Securities present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4. VOTING RIGHTS. Securityholders shall be entitled to
one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote. Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Depositor, the
Trustees or any affiliate of any Trustee shall, for purposes of such vote or
consent, be treated as if such Preferred Securities were not outstanding.
SECTION 6.5. PROXIES, ETC. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy; provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or represented by
proxy in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Property Trustee may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
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SECTION 6.8. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
Holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debentures against the Depositor. If the
Property Trustee fails to enforce its rights as holder of the Debentures after a
request therefor by a Holder of Preferred Securities, such holder may, to the
extent permitted by applicable law, proceed to enforce such rights directly
against the Depositor.
34
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Depositor 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 Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, for enforcement of payment to such
holder of the principal amount of or interest on Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such holder after the respective due date specified in the Debentures (a "Direct
Action"). In connection with any such Direct Action, the rights of the
Depositor will be subrogated to the rights of any Holder of the Preferred
Securities to the extent of any payment made by the Depositor to such Holder of
Preferred Securities as a result of such Direct Action.
SECTION 6.9. INSPECTION OF RECORDS. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States;
(b) the Delaware Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate and trust power, authority and legal right to execute, deliver and
perform its obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this Trust
Agreement;
(d) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of the Property Trustee and the Delaware
Trustee enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(e) the execution, delivery and performance by each of the Property
Trustee and the Delaware Trustee of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any
35
approval of stockholders of the Property Trustee or the Delaware Trustee and
such execution, delivery and performance will not (i) violate either of the
Property Trustee's or the Delaware Trustee's charter or by-laws or (ii) violate
any law, governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the banking, corporate, or trust powers
of the Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the Closing Date on behalf
of the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES. (a)The duties and
responsibilities of the Trustees shall be as provided by this Trust Agreement
and, in the case of the Property Trustee, by the Trust Indenture Act. The
Property Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties and obligations as are specifically set
forth in this Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such rights and powers
vested in it by this Trust Agreement and the Trust Indenture Act, and use the
same degree of care and skill in its exercise, as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs. Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release the Administrative Trustees or Delaware
Trustees from liability for their own grossly negligent action, their own
grossly negligent failure to act, or their own willful misconduct. To the
extent that, at law or in equity, an Administrative Trustee or Delaware Trustee
has duties (including fiduciary duties) and liabilities
36
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee or Delaware Trustee shall not be liable to the Trust or to any
Securityholder for such Administrative Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Administrative
Trustees or Delaware Trustee otherwise existing at law or in equity, are agreed
by the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees or Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in aggregate Liquidation Amount
of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such property as fiduciary assets, subject to
the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust
37
Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor; and
(vi) the Property Trustee shall have no duty or liability with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments thereon or in
connection therewith.
SECTION 8.2. NOTICE OF DEFAULTS. (a) Within [sixty (60)] days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.8, notice of such Event of Default to the
Holders of Preferred Securities, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived; provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee shall be fully protected
in withholding such notice if and so long as the Board of Directors, the
executive committee, or a trust committee of directors and/or responsible
officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Depositor's
exercise of its right to extend the interest payment period for the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Securityholders, unless such exercise shall have been revoked.
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences; provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default under
this Trust 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, including the consent or
vote of all such holders, (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Trust Agreement may only be
waived by the vote of the Holders of the same proportion in Liquidation
Amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Trust Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising
therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the Preferred
Securities of an Event of Default with respect to the Preferred Securities
shall also be deemed to constitute a waiver by the Holders
38
of the Common Securities of any such Event of Default with respect to the
Common Securities for all purposes of this Trust Agreement without any
further act, vote, or consent of the Holders of the Common Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, 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 Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 8.2(d), the Event of
Default under this Trust 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 Trust Agreement as provided below in this
Section 8.2(d), the Event of Default under this Trust Agreement may only be
waived by the vote of the Holders of the same proportion in Liquidation
Amount of the Common Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures outstanding;
provided further, that each Holder of Common Securities will 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 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 Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with the terms
of the Securities. The provisions of Section 6.1(b) and this Section 8.2(d)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded
from this Trust Agreement and the Preferred Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
8.2(d), upon such waiver, any such 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 Trust 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.
(e) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities, constitutes
a waiver of the corresponding Event of Default under this Trust Agreement. The
foregoing provisions of this Section 8.2(e) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Preferred Securities, as permitted by the Trust Indenture Act.
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.1:
39
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee such as of a certificate presented for transfer, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers' Certificate and an
Opinion of Counsel which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to accomplish any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel at the Depositor's
expense (which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon and in accordance with such advice; and the Property
Trustee shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
40
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Property Trustee's agents,
custodians or nominees) and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolutions, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
but the Property Trustee may make such further inquiry or investigation into
such facts or custodian or nominee matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents,
custodians or nominees, attorneys or an Affiliate; provided that the Property
Trustee shall not be responsible for the negligence or recklessness on the part
of any agent, attorney, custodian or nominee appointed by it with due care
hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be fully protected in conclusively relying on or acting in accordance with such
instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;
(l) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Trust Agreement; and
(m) in the event that the Property Trustee is also acting as a Paying
Agent, Conversion Agent, and/or Securities Registrar hereunder, the rights and
protections afforded to the Property Trustee pursuant to this Article 8 shall
also be afforded to such Paying Agent, Conversion Agent, and/or Securities
Registrar.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform
41
any such act or acts, or to exercise any such right, power, duty or obligation.
No permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates shall not
be taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article 1, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Section 8.8 and
8.12, may otherwise deal with the Trust with the same rights it would have if it
were not a Trustee or such other agent.
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay the Trustees from time to time reasonable compensation for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates (referred
to herein as an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation,
dissolution or termination of the Trust or in connection with the administration
of the Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions;
(d) the indemnity provided to a Trustee under this Section 8.6 shall
survive any Trustee's resignation or removal or termination of this Trust
Agreement;
(e) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6; and
42
(f) the provisions of this Section 8.6 shall survive termination of this
Trust Agreement or the resignation of removal of any Trustee.
SECTION 8.7. PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES. (a)
There shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. CONFLICTING INTERESTS. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
SECTION 8.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.(a)
Subject to Sections 8.9(b) and 8.9(c), Trustees (the "Relevant Trustee") may be
appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written instrument
executed by the Depositor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
majority in Liquidation Amount of the Common Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as a Property Trustee under Section 8.7 (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 Depositor and
the removed Property Trustee.
43
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as Delaware Trustee under Section 8.7 (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 Depositor and
the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until his, her or its
successor shall have been appointed or until his, her or its death, removal,
resignation, dissolution or liquidation. 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 Depositor and the Trust, 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 Trustee that acts as the Property
Trustee shall be effective:
(a) until a Successor Property Trustee has been appointed and
has accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Depositor and the
resigning Property Trustee; or
(b) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of the
Securities;
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Depositor and
the resigning Delaware Trustee; and
(iii) no appointment of a successor Property Trustee or Delaware
Trustee shall be effective until all fees, charges, and expenses of the
retiring Property Trustee or retiring Delaware Trustee, as the case may be,
have been paid.
(e) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 8.9
within 60 days after delivery pursuant to this Section 8.9 of an instrument of
resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may petition any court of competent jurisdiction
for appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
44
(g) 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.
(h) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(i) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or the Delaware Trustee, as the case may be, set
forth in Section 8.7).
SECTION 8.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee and (b) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on request of
the Trust or any successor Relevant Trustee, such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder; provided that such
45
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
SECTION 8.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
SECTION 8.13. REPORTS BY PROPERTY TRUSTEE. (a) To the extent
required by the Trust Indenture Act, within 60 days after [May 15] of each
year commencing with [May 15, 1999] the Property Trustee shall transmit to
all Securityholders in accordance with Section 10.8 and to the Depositor, a
brief report dated as of such [May 15] with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such [May 15] or, if the Property Trustee has not complied in
any material respects with such obligations, a description of such
noncompliance;
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities; and
(iv) such other information as is required by Section 313(a) of the
Trust Indenture Act.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of such report shall, at the time of such transmissions to
Holders, be filed by the Property Trustee with each national securities exchange
or self-regulatory organization upon which the Trust Securities are listed, with
the Commission and with the Depositor.
SECTION 8.14. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as are required by Section 314
of the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
46
SECTION 8.15. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.16. NUMBER OF TRUSTEES. (a) The number of Trustees shall be
five; provided that the Holder of all of the Common Securities by written
instrument may increase or decrease the number of Administrative Trustees.
Provided that the Property Trustee meets the applicable requirements, the
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.16(a), or if the
number of Trustees is increased pursuant to Section 8.16(a), a vacancy shall
occur.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.9, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.17. DELEGATION OF POWER. (a) Any Administrative Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereof filed with the Commission, or making any other
governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE. Unless earlier
dissolved, the Trust shall automatically dissolve on __________ __, 2043 (the
"Expiration Date").
SECTION 9.2. EARLY DISSOLUTION. The first to occur of any of the
following events is an "Early Dissolution Event":
47
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax Event
following which the Depositor has elected (i) to pay any Additional Sums (in
accordance with Section 4.4) such that the net amount received by Holders of
Preferred Securities in respect of Distributions are not reduced as a result of
such Tax Event and the Depositor has not revoked any such election or failed to
make such payments or (ii) to redeem all or some of the Debentures pursuant to
Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust Securities;
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the Depositor
at any time (which direction is optional and wholly within the discretion of the
Depositor) of its intention to dissolve the Trust and distribute the Debentures
in exchange for the Preferred Securities.
SECTION 9.3. DISSOLUTION. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of all expenses
owed by the Trust; (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders and (d) the filing
of a certificate of cancellation by the Trustees in accordance with Section 3810
of the Delaware Business Trust Act.
SECTION 9.4. LIQUIDATION. (a) If an Early Dissolution Event
specified in clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Trust Securities held by such Holder, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
▇▇▇▇▇▇'s address as it appears in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such Holder;
and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or, if
Section 9.4(d) applies,
48
receive a Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date and, unless the
Property Trustee determines otherwise, shall be the date which is the fifteenth
day (whether or not a Business Day) next preceding the Liquidation Date) and,
either itself acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem appropriate to
effect the distribution of Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
the Clearing Agency or its nominee, as the record holder of such Trust
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
Trust Securities Certificates not held by the Clearing Agency will be deemed to
represent an aggregate principal amount of Debentures equal to the aggregate
Liquidation Amount of Preferred Securities held by such Holders, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Trust Securities until such certificates are presented to
the Property Trustee for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
wound-up or terminated, by the Property Trustee in such manner as the Property
Trustee determines, and an Administrative Trustee shall prepare, execute and
file the certificate of cancellation with the Secretary of State of the State of
Delaware. In such event, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding-up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a PRO RATA basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up or termination PRO
RATA (determined as aforesaid) with Holders of Preferred Securities, except
that, if a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities.
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE TRUST. The Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Section 9.5
or Section 9.4. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Property Trustee, the
Delaware Trustee or
49
the Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either
9.6. expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to Distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
the Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder's interest in the
new entity), (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act,
and (c) following such merger, consolidation, amalgamation or replacement, the
Trust or such successor entity will be treated as a grantor trust for United
States Federal income tax purposes and (viii) the Depositor or any permitted
successor or assignee owns, directly or indirectly, all of the common securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in aggregate Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety to any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS. Other than as
set forth in Section 9.1, the death, incapacity, dissolution, bankruptcy or
termination of any Person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to dissolve the Trust or terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person to claim an accounting, take any action or bring
any proceeding in
50
any court for a partition or winding-up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
SECTION 10.2. AMENDMENT. (a) This Trust Agreement may be amended from
time to time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a grantor
trust at all times that any Trust Securities are Outstanding or to ensure that
the Trust will not be required to register as an "investment company" under the
1940 Act, or be classified as other than a grantor trust for United States
Federal income tax purposes, or (iii) to comply with the requirements of the
Commission in order to effect or maintain the qualification of this Trust
Agreement under the Trust Indenture Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any such amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Holders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding, acting as a single class, and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trustee's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from the
status of an "investment company" under the 1940 Act; provided, however, if any
amendment or proposal that would adversely affect the powers, preferences or
special rights of the Trust Securities, whether by way of amendment or
otherwise, would adversely affect only the 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
Trust Securities.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
the status of an "investment company" under the 1940 Act or be classified as
other than a grantor trust for United States Federal income tax purposes.
51
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT
TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561 OF TITLE 12
THEREOF.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed
for any payment on any Trust Security shall be a day which is not a Business
Day, then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day except as otherwise provided in Section
4.1(a) and Section 4.2(d)), with the same force and effect as though made on the
date fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6. SUCCESSORS. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Depositor, the Trust or
the Relevant Trustee, including any successor by operation of law. Except in
connection with a transaction that is permitted under Article 8 of the Indenture
and pursuant to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS. Any report, notice,
demand or other communications which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b)
52
in the case of the Holder of the Common Securities, to Dura Automotive Systems,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee, to The
First National Bank of Chicago, (b) with respect to the Delaware Trustee, to
First Chicago, Delaware Inc., with a copy of any such notice to the Property
Trustee at its address above, and (c) with respect to the Administrative
Trustees, to them at the address for notices to the Depositor, marked
"Attention: Vice President - Treasurer." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 10.9. AGREEMENT NOT TO PETITION. Each of the Trustees and
the Depositor agrees for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been dissolved in accordance with
Article 9, it shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
dissolution of this Trust Agreement.
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust Indenture
Act that are required to be part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
53
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS THE AGREEMENT OF THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. COUNTERPARTS. This Trust Agreement may contain more
than one counterpart of the signature page and this Trust Agreement may be
executed by the affixing of the signature of each of the 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.
54
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
DURA AUTOMOTIVE SYSTEMS, INC.,
as Depositor
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as Administrative Trustee
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
as Administrative Trustee
---------------------------------
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
as Administrative Trustee
EXHIBIT A -- Certificate of Trust of
Dura Automotive Systems Capital Trust
CERTIFICATE OF TRUST
OF
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
THIS Certificate of Trust of Dura Automotive Systems Capital Trust
(the "Trust"), dated as of March 2, 1998, is being duly executed and filed by
the undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Dura
Automotive Systems Capital Trust.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware are
First Chicago Delaware Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
FIRST NATIONAL BANK OF CHICAGO, not in
its individual capacity but solely as
trustee of the Trust
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
_______________, not in his individual
capacity but solely as trustee of the
Trust
-----------------------------------
A-1
EXHIBIT B -- Form of Certificate
Depositary Agreement
B-1
EXHIBIT C -- Form of Common Securities of
Dura Automotive Systems Capital Trust
THE SECURITIES EVIDENCED HEREBY AND THE CLASS A COMMON STOCK ISSUABLE UPON
THEIR CONVERSION AND THE DEBENTURES THAT MAY BE ISSUED IN EXCHANGE THEREFOR HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE, IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
C-1
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN
ENTITY WHOLLY OWNED BY DURA AUTOMOTIVE SYSTEMS, INC.
OR TO CERTAIN SUCCESSORS OF DURA AUTOMOTIVE SYSTEMS, INC.
Certificate Number ____ Number of Common Securities _____
Certificate Evidencing Common Securities
of
Dura Automotive Systems Capital Trust
Common Securities
(Liquidation Amount $25 per Common Security)
Dura Automotive Systems Capital Trust, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Dura Automotive Systems, Inc. (the "Holder") is the registered owner of
______________ common securities of the Trust representing undivided beneficial
interests in the assets of the Trust (the "Common Securities"). Except as set
forth in Section 5.10 of the Trust Agreement (as defined below), the Common
Securities are not transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth in, and this certificate
and the Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of March __, 1998, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of the Common Securities as set forth therein. The Holder is entitled
to the benefits of the Common Securities Guarantee Agreement entered into by
Dura Automotive Systems, Inc., a Delaware corporation, and The First National
Bank of Chicago, as Guarantee Trustee, dated as of March __, 1998 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ______ day of March, 1998.
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
By:
--------------------------------
Name:
--------------------------------
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
Dated:
-------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
--------------------------------
Name:
--------------------------------
Authorized Signatory
C-3
EXHIBIT D -- Form of Preferred Securities of
Dura Automotive Systems Capital Trust
This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of The Depository Trust Company ("DTC") or a
nominee of DTC. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than DTC or its nominee only
in the limited circumstances described in the Trust Agreement and no transfer of
this Preferred Security (other than a transfer of this Preferred Security as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized representative
of DTC, to Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
D-1
Certificate Number ____ Number of Preferred Securities ______
CUSIP NO. ____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
____% Convertible Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Dura Automotive Systems Capital Trust, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that __________________ (the "Holder") is the registered owner of _______
preferred securities of the Trust representing an undivided beneficial interest
in the assets of the Trust and designated the Dura Automotive Systems Capital
Trust ____% Convertible Preferred Securities (Liquidation Amount $25 per
Preferred Security) (the "Preferred Securities"). Except to the extent set
forth in the Trust Agreement (as defined below), the Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of March, 1998 as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by Dura Automotive
Systems, Inc., a Delaware corporation, and The First National Bank of Chicago,
as Guarantee Trustee, dated as of March __, 1998 (the "Guarantee"), to the
extent provided therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of March 1998.
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
By:
--------------------------------
Name:
--------------------------------
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
--------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
--------------------------------
Name:
--------------------------------
Authorized Signatory
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
----------------------
Signature:
----------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
1
TO BE ATTACHED TO GLOBAL CERTIFICATE
SCHEDULE A
The initial Liquidation Amount of this Global Certificate shall be
$__________. The following increases or decreases in the Liquidation Amount of
this Global Certificate have been made:
Amount of increase in
Liquidation Amount of Liquidation Amount of
this Global Certificate Amount of decrease in this Global Certificate Signature of authorized
including upon exercise Liquidation Amount of following such decrease officer of Trustee or
Date Made of over-allotment option this Global Certificate or increase Securities Custodian
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2
EXHIBIT E -- Notice of Conversion
NOTICE OF CONVERSION
To: The First National Bank of Chicago,
as Property Trustee of
Dura Automotive Systems, Inc.
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Class A Common Stock of Dura Automotive Systems, Inc. (the
"Dura Class A Common Stock") in accordance with the terms of the Amended and
Restated Trust Agreement (as amended from time to time, the "Trust Agreement"),
dated as of March, 1998, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇, as Administrative Trustees, First Chicago Delaware Inc., as Delaware
Trustee, The First National Bank of Chicago, as Property Trustee, Dura
Automotive Systems, Inc., as Depositor, and by the Holders, from time to time,
of undivided beneficial interests in the assets of the Trust to be issued
pursuant to the Trust Agreement. Pursuant to the aforementioned exercise of the
option to convert these Preferred Securities, the undersigned hereby directs the
Conversion Agent (as that term is defined in the Trust Agreement) to (i)
exchange such Preferred Securities for a portion of the Debentures (as that term
is defined in the Trust Agreement) held by the Trust (at the rate of exchange
specified in the terms of the Preferred Securities set forth in the Trust
Agreement) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Dura Class A Common Stock (at the conversion rate specified in
the terms of the Preferred Securities set forth in the Trust Agreement).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
E-1
Date:
--------------
in whole in part
----- -----
Number of Preferred Securities to be
converted:
-----------------------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the shares
of Dura Class A Common Stock are to be
issued, along with the address or addresses
of such person or persons
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
-----------------------------------
-----------------------------------
-----------------------------------
Signature Guarantee: *
-----------------------------------
---------------
* (Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.
E-2