1
Exhibit 4(m)
[EXECUTION COPY]
ADVANCE \d 72"
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
PIONEER-STANDARD ELECTRONICS, INC.
AS DEPOSITOR,
WILMINGTON TRUST COMPANY
AS PROPERTY TRUSTEE
AND
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MARCH 23, 1998
PIONEER-STANDARD FINANCIAL TRUST
TABLE OF CONTENTS
PAGE
TOC \f
ARTICLE 1 DEFINED TERMS
SECTION 1.1. Definitions 2
ARTICLE 2 ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name 14
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business 14
SECTION 2.3. Organizational Expenses 14
SECTION 2.4. Issuance of the Preferred Securities 14
2
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures 15
SECTION 2.6. Declaration of Trust 15
SECTION 2.7. Authorization to Enter into Certain Transactions 16
SECTION 2.8. Assets of Trust 20
SECTION 2.9. Title to Trust Property 20
ARTICLE 3 PAYMENT ACCOUNT
SECTION 3.1. Payment Account 20
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions 21
SECTION 4.2. Redemption 22
SECTION 4.3. Conversion 24
SECTION 4.4. Special Event Exchange or Redemption 27
SECTION 4.5. Subordination of Common Securities 29
SECTION 4.6. Payment Procedures. 29
SECTION 4.7. Tax Returns and Reports 29
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust 30
SECTION 4.9. Payments under Indenture 30
ARTICLE 5 TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership 30
SECTION 5.2. The Trust Securities Certificates 30
SECTION 5.3. Delivery of Trust Securities Certificates 31
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities; Restrictions on Transfer 31
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates 37
SECTION 5.6. Persons Deemed Securityholders 37
SECTION 5.7. Access to List of Securityholders' Names and Addresses 38
SECTION 5.8. Maintenance of Office or Agency 38
SECTION 5.9. Appointment of Paying Agent 38
SECTION 5.10. Ownership of Common Securities by Depositor 39
SECTION 5.11. Global Securities; Non-Global Securities;
Common Securities Certificate 39
SECTION 5.12. Notices to Clearing Agency 41
SECTION 5.13. Definitive Preferred Securities Certificates 41
SECTION 5.14. Rights of Securityholders 41
SECTION 5.15. Restrictive Legends 42
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING
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SECTION 6.1. Limitations on Voting Rights 43
SECTION 6.2. Notice of Meetings 45
SECTION 6.3. Meetings of Securityholders 45
SECTION 6.4. Voting Rights 46
SECTION 6.5. Proxies, Etc 46
SECTION 6.6. Securityholder Action by Written Consent 46
SECTION 6.7. Record Date for Voting and Other Purposes 46
SECTION 6.8. Acts of Securityholders 47
SECTION 6.9. Inspection of Records 48
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee 48
SECTION 7.2. Representations and Warranties of Depositor 49
ARTICLE 8 THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities 50
SECTION 8.2. Notice of Defaults 52
SECTION 8.3. Certain Rights of Property Trustee 54
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities 56
SECTION 8.5. May Hold Securities 56
SECTION 8.6. Compensation; Indemnity; Fees 56
SECTION 8.7. Property Trustee Required; Eligibility of Trustees 57
SECTION 8.8. Conflicting Interests 58
SECTION 8.9. Resignation and Removal; Appointment of Successor 58
SECTION 8.10. Acceptance of Appointment by Successor 60
SECTION 8.11. Merger, Conversion, Consolidation or Succession
to Business 61
SECTION 8.12. Preferential Collection of Claims Against Depositor
or Trust 61
SECTION 8.13. Reports by Property Trustee 61
SECTION 8.14. Reports to the Property Trustee 62
SECTION 8.15. Evidence of Compliance with Conditions Precedent 62
SECTION 8.16. Number of Trustees 62
SECTION 8.17. Delegation of Power 63
ARTICLE 9 DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date 63
SECTION 9.2. Early Dissolution 63
SECTION 9.3. Dissolution 64
SECTION 9.4. Liquidation 64
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust 65
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ARTICLE 10 MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders 67
SECTION 10.2. Amendment 67
SECTION 10.3. Separability 68
SECTION 10.4. Governing Law 68
SECTION 10.5. Payments Due on Non-Business Day 69
SECTION 10.6. Successors 69
SECTION 10.7. Headings 69
SECTION 10.8. Reports, Notices and Demands 69
SECTION 10.9. Agreement Not to Petition 70
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act 70
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture 70
SECTION 10.12. Counterparts 71
ARTICLE 11 REGISTRATION RIGHTS
SECTION 11.1. Registration Rights 71
EXHIBIT A -- Certificate of Trust of Pioneer-Standard Financial Trust
EXHIBIT B -- Form of Certificate Depositary Agreement
EXHIBIT C -- Form of Common Securities of Pioneer-Standard Financial Trust
EXHIBIT D -- Form of Preferred Securities of Pioneer-Standard Financial Trust
EXHIBIT E -- Form of Regulation S Certificate
EXHIBIT F -- Form of Restricted Securities Certificate
EXHIBIT G -- Form of Unrestricted Securities Certificate
EXHIBIT H -- Notice of Conversion
PIONEER-STANDARD FINANCIAL 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
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(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
* Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 23, 1998 among
(i) Pioneer-Standard Electronics, Inc., an Ohio corporation (including any
successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a
banking corporation duly organized and existing under the laws of the State of
Delaware, 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) the Bank, as Delaware trustee (in such capacity, the "Delaware Trustee"),
(iv) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇
▇▇▇▇▇, an individual, each of whose address is c/o Pioneer-Standard
Electronics, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, each,
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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 February 27, 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 February 27, 1998, attached as
Exhibit A (the "Certificate of Trust"), 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 Purchase 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 Trust 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:
the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
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;
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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
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:
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
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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 90 consecutive days; or
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.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or 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 Depositary 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.
"Certificate of Trust" has the meaning specified in the recitals
to this Trust Agreement.
"Certificated Preferred Security" has the meaning specified in
Section 5.2.
"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
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effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Initial Closing Date (as defined in the
Purchase 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 $50 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 common shares, without par value, of the
Depositor.
"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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
"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 NASDAQ, or, if
Common Stock is not quoted or admitted to trading on NASDAQ 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, if Common Stock is not listed or admitted to trading on any such
national securities exchange, 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
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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.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture and the First Supplemental Indenture, the
date fixed for redemption thereof under the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as trustee under the Indenture and the First Supplemental Indenture until a
successor is appointed under the Indenture and the First Supplemental Indenture,
and thereafter such successor trustee.
"Debentures" means all of the Depositor's Series A 6 3/4% junior
convertible subordinated debentures, due March 31, 2028, $148,200,000 aggregate
principal amount, issued pursuant to the Indenture and the First Supplemental
Indenture.
"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(b) 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. (ss.) 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.
"Early Dissolution Event" has the meaning specified in Section
9.2.
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"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.
"First Supplemental Indenture" means the First Supplemental
Indenture to the Indenture, dated as of March 23, 1998, between the Depositor
and the Debenture Trustee.
"Global Certificate" means a Preferred Security that is
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11, including the
Restricted Global Certificate and the Regulation S Global Certificate,.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and Wilmington Trust Company, a banking corporation duly
organized and existing under the laws of the State of Delaware, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Holder" means a Person in whose name a Trust Security or
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
March 23, 1998 between the Depositor and the Debenture Trustee, as amended or
supplemented from time to time with respect to the Debentures.
"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
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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 $50 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).
"NASDAQ" means the Nasdaq National Market.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Conversion" means the notice given by a Holder of
Preferred Securities or Common Securities to the Conversion Agent directing the
Conversion Agent to exchange such Preferred Securities or Common Securities, as
the case may be, for Debentures and to convert such Debentures into Common Stock
on behalf of such Holder. Such notice shall be substantially in the form set
forth in Exhibit H.
"Offering Memorandum" means the confidential offering memorandum,
dated as of March 18, 1998, relating to the offering of the Preferred Securities
by the Trust, as amended or supplemented from time to time.
"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 a 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 statement that each officer signing the Officers' Certificate
has read the covenant of condition and the definitions relating thereto;
a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
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
a statement as to whether, in the opinion of each such officer,
such
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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 reasonably 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 statement that each individual signing the Opinion of Counsel
has read the covenant or condition and the definitions relating thereto;
a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the Opinion of Counsel;
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
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 31 in
each of the following years indicated:
Year
Redemption Price
Year
Redemption Price
2002
104.050%
2006
101.350%
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2003
103.375%
2007
100.675%
2004
102.700%
2008 and thereafter
100.000%
2005
102.025%
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 $50 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:
Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation or tendered for
conversion;
Trust Securities for whose payment or redemption money in the
necessary
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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;
Trust Securities which have been exchanged for Debentures
pursuant to Section 4.4; and
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 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 an
interest in a Global 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.
16
"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 $50 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.
"Purchase Agreement" means the Purchase Agreement, dated as of
March 18, 1998 among the Trust, the Depositor and the Initial Purchasers named
therein.
"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, $50
per Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated March 23, 1998, among the Depositor, the Trust, and the Initial
Purchasers named in the Purchase Agreement.
"Regulation S Certificate" means a certificate substantially in
the form set forth in Exhibit E.
"Regulation S Global Certificate" has the meaning specified in
Section 5.2.
"Regulation S Legend" has the meaning specified in Section
5.15(b).
"Regulation S Preferred Security" has the meaning specified in
Section 5.2. Such term includes the Regulation S Global Certificate.
"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
17
Agreement, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Global Certificate" has the meaning specified in
Section 5.2.
"Restricted Period" means, with respect to the Preferred
Securities, the one-year period, and with respect to the Debentures or the
Common Stock issuable on conversion of the Preferred Securities, the 40-day
period, in either case following the last original issue date of the Preferred
Securities (including any Preferred Securities issued to cover overallotments).
"Restricted Securities" means all Preferred Securities required
pursuant to Section 5.4(c) to bear any Restricted Securities Legend. Such term
includes the Restricted Global Certificate.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit F.
"Restricted Securities Legend" has the meaning specified in
Section 5.15(a).
"Rule 144A Preferred Securities" has the meaning specified in
Section 5.2.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Register" and "Securities Registrar"shall 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(b).
"Successor Delaware Trustee" has the meaning specified in Section
8.9(c).
"Successor Securities" has the meaning specified in Section 9.5.
"Super Majority" has the meaning specified in Section 8.2.
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"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 of 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 (other than interest payable
by delivery of Common Stock pursuant to exercise of a conversion right by a
Holder of Preferred Securities) is not, or will not be, within 90 days of 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 of 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.
"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
19
Certificates, the Global Certificates or the Certificated Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit G.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1 Name
The Trust continued hereby shall be known as "Pioneer-Standard Financial
Trust", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders and the other Trustees, in
which name the Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2 Office of the Delaware Trustee; Principal Place
of Business.
The address of the Delaware Trustee in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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. The
Depositor on behalf of the Trust executed and delivered the Purchase Agreement.
On the Closing Date and on any other date Preferred Securities and Common
Securities are sold pursuant to the overallotment option granted in the
Purchase Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Initial Purchasers
named in the Purchase Agreement Preferred Securities Certificates representing
the Preferred Securities purchased by the Initial Purchasers pursuant to the
Purchase Agreement, against receipt of the aggregate purchase price of such
Preferred Securities which the Administrative Trustees shall promptly
20
deliver to the Property Trustee. The aggregate number of Preferred Securities
outstanding at any time shall not exceed 2,500,000, plus up to an additional
375,000 Preferred Securities solely to cover overallotments, as provided for in
the Purchase Agreement.
SECTION 2.5 Issuance of the Common Securities; Subscription
and Purchase of Debentures. (a) On the Closing Date and on any other date
Preferred Securities and Common Securities are sold pursuant to the
overallotment option granted in the Purchase Agreement, the Depositor will
purchase all of the Common Securities issued by the Trust, in an aggregate
amount at least equal to 3% of the capital of the Trust, at the same time as
the Preferred Securities are sold, and 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, against receipt of the aggregate purchase price of such Common
Securities from the Depositor. The aggregate number of Common Securities
outstanding at any time shall not exceed 78,000, plus up to an additional
11,000 Common Securities to meet the capital requirements of the Trust in the
event of an issuance of additional Preferred Securities pursuant to the
overallotment option contained in the Purchase Agreement.
(b) Contemporaneously with the sale of Trust Securities described
in Section 2.4 and 2.5(a), the Administrative Trustees, 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 the Liquidation Amount of the Trust Securities sold
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor an equivalent
sum of money.
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 in trust upon and subject to the conditions set forth herein
for the benefit of the Trust and the Securityholders. The Administrative
Trustees shall have all 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,
21
nor shall the Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
SECTION 2.7 Authorization to Enter into Certain Transactions. 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:
As among the Trustees, each Administrative Trustee, acting
singly or collectively, shall have the power and authority to act on behalf of
the Trust with respect to the following matters:
to issue and sell the Trust Securities including, without
limitation, to prepare the Offering Memorandum and any amendment thereto,
provided, however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and, provided,
further, that there shall be no interests in the Trust other than the 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 overallotment option granted to the Initial Purchasers
named in the Purchase Agreement, subject to the issuance of Trust Securities
pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Registration Rights Agreement and the
Certificate Depositary Agreement and such other agreements as may be necessary
or incidental to the purposes and function of the Trust (and, with respect to
the Purchase Agreement, to cause the Trust to perform such agreement on behalf
of the Trust);
to assist in the registration of the Preferred Securities
under the Securities Act, and under state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
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);
to appoint a Paying Agent and a Securities Registrar in
accordance
22
with this Trust Agreement;
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;
unless otherwise required by the Delaware Business Trust Act
or the Trust Indenture Act, to execute on behalf of the Trust any documents that
the Administrative Trustees have the power to execute pursuant to this Trust
Agreement; and
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:
causing the Trust not to be deemed to be an investment company
required to be registered under the 1940 Act;
causing the Trust to be classified for United States Federal
income tax purposes as a grantor trust; and
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).
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:
the establishment of the Payment Account;
the receipt of and taking title to the Debentures;
the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities;
the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
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;
the distribution of the Trust Property in accordance with the
terms
23
of this Trust Agreement;
to the extent provided in this Trust Agreement, the winding up
of the affairs of and liquidation of the Trust;
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);
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
to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
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 transactions except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees shall
not and shall cause the Trust not 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.
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):
24
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;
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;
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 that neither the Trust nor
the Depositor has any obligation under the Indenture, the Purchase 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);
to negotiate, and to execute and deliver, on behalf of the
Trust, the Purchase Agreement; and
any other actions necessary or incidental to carry out
any of the foregoing activities.
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 respect, 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
25
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
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.
The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1 Distributions
Distributions on the Trust Securities shall be cumulative, and shall
accumulate 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
First Supplemental Indenture, shall be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing on June 30, 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) except that, if such Business Day
is in the next succeeding calendar year,
26
payment of such Distribution shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date (each
date on which Distributions are payable in accordance with this Section 4.1(a),
a "Distribution Date").
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 6 3/4% 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.
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.
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
Upon an optional redemption (as set forth in the First Supplemental 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 First Supplemental 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 Securities unless all
accumulated and unpaid Distributions have been paid on all Trust Securities for
all quarterly Distribution periods terminating on or prior to the date of
redemption.
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:
the Redemption Date;
27
the Redemption Price or the Optional Redemption Price, as the
case may be;
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);
the CUSIP number;
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;
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;
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 accumulate on and after said date; and
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.
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.
If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, 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 pay the Redemption Price or the Optional Redemption Price, as the
case may be, and will give the Clearing Agency irrevocable instructions and
authority to pay or credit, pursuant to its procedures, the Redemption Price or
the Optional Redemption Price, as the case may be, to the Holders thereof. If
the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price or the Optional
Redemption Price, as the case may be, on such Preferred Securities held in
certificated form and will give the
28
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 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.
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 $50 or an integral multiple of $50 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
29
required to (i) 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 selection for redemption of Preferred Securities and ending at the
close of business on the earliest date on 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 register the 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 Common Stock in the manner
described herein on and subject to the following terms and conditions:
(a) The Trust Securities will be convertible into fully paid
and nonassessable shares of 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 Common Stock at an initial rate of 3.1746
shares of Common Stock for each Trust Security (which is equivalent to a
conversion price of approximately $15.75 per share of Common Stock), subject to
certain adjustments set forth in the First Supplemental Indenture (as so
adjusted, "Conversion Price").
(b) In order to convert Trust Securities into 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 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 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;
provided, however, that so long as any Preferred Securities
30
remain Outstanding, the Trust shall not convert any Debentures except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a Holder of
Preferred Securities. The Conversion Agent shall thereupon notify the Depositor
of the Holder's election to convert such Debentures into shares of 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 any
conversion on account of any accumulated and unpaid Distributions whether or not
in arrears accumulated on the Trust Securities surrendered for conversion, or on
account of any accrued and unpaid dividends on the shares of Common Stock issued
upon such conversion. Trust Securities submitted for conversion prior to the
expiration of conversion rights as provided in Section 4.3(c) 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 Common Stock
issuable upon conversion of the Debentures shall be treated for all purposes as
the record holder or holders of such 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 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.
(c) 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.
(d) Each Holder of a Trust Security by its acceptance thereof
initially appoints Wilmington Trust Company 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
Common Stock and thereupon to deliver such shares of 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.
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(e) No fractional shares of 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 Common Stock, and the
Conversion Agent will in turn make such payment to the Holder or Holders of
Trust Securities so converted.
(f) 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.
SECTION 4.4 Special Event Exchange or Redemption. 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 and be continuing,
the Depositor shall have the right, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures, in accordance with the provisions of
Section 4.2 in whole or in part, for cash upon the later of (i) 90 days
following the occurrence of such Tax Event or (ii) March 31, 2002. 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.
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
32
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 Securities 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.
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 Global
Certificates, the Property Trustee shall provide for the selection for exchange
of a portion of the Global Certificate representing beneficial interests therein
on a pro rata basis and (iii) if Outstanding Trust Securities are represented by
both Definitive Preferred Securities Certificates and Global Certificates, the
Property Trustee shall select the portion of the Global Certificate representing
the beneficial interests therein 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 Global 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.
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 Global 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
33
exchanged in a similar manner.
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.
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.
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 or Optional Redemption Price, as the case may be, 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
Amounts, if applicable) on, or the Redemption Price or Optional Redemption
Price, as the case may be, 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 or Optional
Redemption Price, as the case may be, the full amount of such Redemption Price
or Optional Redemption Price, as the case may be, on all Outstanding Preferred
Securities then called for redemption, 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 or Optional
Redemption Price, as the case may be, 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.
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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
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 $50
35
Liquidation Amount and integral multiples of $50 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $50
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. Preferred Securities initially sold to qualified institutional buyers in
reliance on Rule 144A under the Securities Act ("Rule 144A Preferred
Securities") initially will be represented by one or more certificates in
registered, global form (collectively, the "Restricted Global Certificate").
Preferred Securities initially sold in offshore transactions in reliance on
Regulation S under the Securities Act ("Regulation S Preferred Securities")
initially will be represented by one or more certificates in registered, global
form (collectively, the "Regulation S 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
36
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; Restrictions on Transfer. The Securities Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 5.8, a
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. Such register is herein sometimes referred to as the "Securities
Register". 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 Securities Certificate 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
Certificates of any authorized denominations and of a like aggregate Liquidation
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 Certificates to be exchanged
at any such office or agency. Whenever any Preferred Securities Certificates 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 Certificates 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 Preferred Securities surrendered
upon such registration of transfer or exchange.
Every Preferred Security Certificate 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
37
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.
Certain Transfers and Exchanges. Notwithstanding any other
provision of this Trust Agreement or the Preferred Securities, transfers and
exchanges of Preferred Securities and beneficial interests in a Global
Certificate of the kinds specified in this Section 5.4(b) shall be made only in
accordance with this Section 5.4(b).
Restricted Global Certificate to Regulation S Global
Certificate. If the owner of a beneficial interest in the Restricted Global
Certificate wishes at any time to transfer such interest to a Person who wishes
to acquire the same in the form of a beneficial interest in the Regulation S
Global Certificate, such transfer may be effected in accordance with the
provisions of this Clause (b)(i) and Clause (b)(vi) below and subject to the
Applicable Procedures. Upon receipt by the Property Trustee, as Securities
Registrar, of (A) a written order given by the Clearing Agency or its authorized
representative directing that a beneficial interest in the Regulation S Global
Certificate in a specified Liquidation Amount (or number of Preferred
Securities) be credited to a specified participant's account and that a
beneficial interest in the Restricted Global Certificate in an equal Liquidation
Amount (or number of Preferred Securities) be debited from another specified
participant's account and (B) a Regulation S Certificate, satisfactory to the
Property Trustee and duly executed by the owner of such beneficial interest in
the Restricted Global Certificate or his attorney duly authorized in writing,
then the Property Trustee, as Securities Registrar but subject to Clause (b)(vi)
below, shall reduce the share number of the Restricted Global Certificate and
increase the share number of the Regulation S Global Certificate by such
specified Liquidation Amount (or number of Preferred Securities) as provided in
Section 5.11(b).
Regulation S Global Certificate to Restricted Global
Certificate. If the owner of a beneficial interest in the Regulation S Global
Certificate wishes at any time to transfer such interest to a Person who wishes
to acquire the same in the form of a beneficial interest in the Restricted
Global Certificate, such transfer may be effected only in accordance with this
Clause (b)(ii) and subject to the Applicable Procedures. Upon receipt by the
Property Trustee, as Securities Registrar, of (A) a written order given by the
Clearing Agency or its authorized representative directing that a beneficial
interest in the Restricted Global Certificate in a specified Liquidation Amount
(or number of Preferred Securities) be credited to a specified participant's
account and that a beneficial interest in the Regulation S Global Certificate in
an equal Liquidation Amount (or number of Preferred Securities) be debited from
another specified participant's account and (B) if such transfer is to occur
during the Restricted Period, a Restricted Securities Certificate, satisfactory
to the Property Trustee and duly executed by the owner of such beneficial
interest in the Regulation S Global Certificate or his attorney duly authorized
38
in writing, then the Property Trustee, as Securities Registrar, shall reduce the
Liquidation Amount (or number of Preferred Securities) of the Regulation S
Global Certificate and increase the Liquidation Amount of (or number of
Preferred Securities represented by) the Restricted Global Certificate by such
specified Liquidation Amount (or number of securities) as provided in Section
5.11(b).
Restricted Non-Global Certificate to Restricted Global
Certificate or Regulation S Global Certificate. If the Holder of a Restricted
Security (other than a Global Certificate) wishes at any time to transfer all or
any portion of such Restricted Security to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global
Certificate or the Regulation S Global Certificate, such transfer may be
effected only in accordance with the provisions of this Clause (b)(iii) and
Clause (b)(vi) below and subject to the Applicable Procedures. Upon receipt by
the Property Trustee, as Securities Registrar, of (A) such Restricted Security
as provided in Section 5.4(a) and written instructions satisfactory to the
Property Trustee directing that a beneficial interest in the Restricted Global
Certificate or Regulation S Global Certificate in a specified Liquidation Amount
(or number of Preferred Securities) not greater than the amount of such
Preferred Security be credited to a specified participant's account and (B) a
Restricted Securities Certificate if the specified account is to be credited
with a beneficial interest in the Restricted Global Certificate, or a Regulation
S Certificate, if the specified account is to be credited with a beneficial
interest in the Regulation S Global Certificate, in either case satisfactory to
the Property Trustee and duly executed by such Holder or his attorney duly
authorized in writing, then the Property Trustee, as Securities Registrar but
subject to Clause (b)(vi) below, shall cancel such Restricted Security (and
issue a new Restricted Security in respect of any untransferred portion thereof)
as provided in Section 5.4(a) and increase the Liquidation Amount of (or number
of Preferred Securities represented by) the Restricted Global Certificate or the
Regulation S Global Certificate, as the case may be, by the specified
Liquidation Amount (or number of securities) as provided in Section 5.11(b).
Regulation S Non-Global Certificate to Restricted Global
Certificate or Regulation S Global Certificate. If the Holder of a Regulation S
Preferred Security (other than a Global Certificate) wishes at any time to
transfer all or any portion of such Regulation S Security to a Person who wishes
to acquire the same in the form of a beneficial interest in the Restricted
Global Certificate or the Regulation S Global Certificate, such transfer may be
effected only in accordance with this Clause (b)(iv) and Clause (b)(vi) below
and subject to the Applicable Procedures. Upon receipt by the Property Trustee,
as Securities Registrar, of (A) such Regulation S Security as provided in
Section 5.4(a) and written instructions satisfactory to the Property Trustee
directing that a beneficial interest in the Restricted Global Certificate or
Regulation S Global Certificate in a specified Liquidation Amount (or number of
Preferred Securities) not greater than the amount of such Preferred Security be
credited to a specified participant's account and (B) if the transfer is to
occur during the Restricted Period and the specified account is to be credited
with a beneficial interest in the Restricted Global Certificate, a Restricted
Securities Certificate satisfactory to the Property Trustee and duly executed by
such Holder or his attorney duly authorized in writing then the Property
Trustee, as
39
Securities Registrar but subject to Clause (b)(vi) below, shall cancel such
Regulation S Preferred Security (and issue a new Regulation S Preferred Security
in respect of any untransferred portion thereof) as provided in Section 5.4(a)
and increase the Liquidation Amount of (or number of Preferred Securities
represented by) the Restricted Global Certificate or the Regulation S Global
Certificate, as the case may be, by the specified Liquidation Amount (or number
of securities) as provided in Section 5.11(b).
Non-Global Certificate to Non-Global Certificate. A
Preferred Security that is not a Global Certificate may be transferred, in whole
or in part, to a Person who takes delivery in the form of another Preferred
Security that is not a Global Certificate as provided in Section 5.11, provided
that, if the Preferred Security to be transferred in whole or in part is a
Restricted Security, or is a Regulation S Preferred Security and the transfer is
to occur during the Restricted Period, then the Property Trustee shall have
received (A) a Restricted Securities Certificate, satisfactory to the Property
Trustee and duly executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder shall take delivery
in the form of a Restricted Security, or (B) a Regulation S Certificate,
satisfactory to the Property Trustee and duly executed by the transferor Holder
or his attorney duly authorized in writing, in which case the transferee Holder
shall take delivery in the form of a Regulation S Preferred Security (subject in
every case to Section 5.4(c)).
Regulation S Global Certificate to be Held Through Euroclear
or Cedel during Restricted Period. The Depositor shall use its best efforts to
cause the Clearing Agency to ensure that, until the expiration of the Restricted
Period, beneficial interests in the Regulation S Global Certificate may be held
only in or through accounts maintained at the Clearing Agency by Euroclear or
Cedel (or by participants acting for the account thereof), and no Person shall
be entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; provided that
this Clause (b)(vi) shall not prohibit any transfer or exchange of such an
interest in accordance with Clause (b)(ii) or (iv) above.
Securities Act Legends. Rule 144A Preferred Securities,
Certificated Preferred Securities and their respective Successor Securities
shall bear a Restricted Securities Legend as set forth in Section 5.15, and the
Regulation S Preferred Securities and their Successor Securities shall bear a
Regulation S Legend, subject to the following:
subject to the following Clauses of this Section 5.4(c), a
Preferred Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Certificate or any portion thereof shall bear the
Securities Act Legend borne by such Global Certificate while represented
thereby;
subject to the following Clauses of this Section 5.4(c), a
new Preferred Security which is not a Global Certificate and is issued in
exchange for another Preferred Security (including, a Global Certificate) or any
portion thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Preferred Security,
40
provided that, if such new Preferred Security is required pursuant to Section
5.4(b)(v) to be issued in the form of a Restricted Security, it shall bear a
Restricted Securities Legend and, if such new Preferred Security is so required
to be issued in the form of a Regulation S Preferred Security, it shall bear a
Regulation S Legend;
any Preferred Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the Securities
Act, together with their Successor Securities shall not bear a Securities Act
Legend; the Depositor shall inform the Property Trustee in writing of the
effective date of any such registration statement registering the Preferred
Securities under the Securities Act and shall notify the Property Trustee at any
time when prospectuses may not be delivered with respect to Preferred Securities
to be sold pursuant to such registration statement. The Property Trustee shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement;
at any time after the Preferred Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a new Preferred
Security which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Preferred Security (other than a Global Certificate) or any
portion thereof which bears such a legend if the Property Trustee has received
an Unrestricted Securities Certificate, satisfactory to the Property Trustee and
duly executed by the Holder of such legended Preferred Security or his attorney
duly authorized in writing, and after such date and receipt of such certificate,
an Administrative Trustee shall execute on behalf of the Trust by manual or
facsimile signature, and the Property Trustee shall authenticate and deliver
such a new Preferred Security in exchange for or in lieu of such other Preferred
Security as provided in this Article 5;
a new Preferred Security which does not bear a Securities
Act Legend may be issued in exchange for or in lieu of a Preferred Security
(other than a Global Certificate) or any portion thereof which bears such a
legend if, in the Depositor's judgment, placing such a legend upon such new
Preferred Security is not necessary to ensure compliance with the registration
requirements of the Securities Act, and an Administrative Trustee shall execute
on behalf of the Trust by manual or facsimile signature, and the Property
Trustee, at the written direction of the Depositor, shall authenticate and
deliver such a new Preferred Security as provided in this Article 5; and
notwithstanding the foregoing provisions of this Section
5.4(c), a Successor Security of a Preferred Security that does not bear a
particular form of Securities Act Legend shall not bear such form of legend
unless the Depositor has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144 under the
Securities Act, in which case an Administrative Trustee shall execute on behalf
of the Trust by manual or facsimile signature, and the Property Trustee, at the
written direction of the Depositor, shall authenticate and deliver a new
Preferred Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article 5.
41
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 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 five 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
42
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 Wilmington, Delaware 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 Corporate Trust
Office of the Property Trustee 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 Wilmington, Delaware, 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. 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
43
this Trust 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, as provided 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 PIONEER-STANDARD ELECTRONICS, INC. OR TO CERTAIN
SUCCESSORS OF PIONEER-STANDARD ELECTRONICS, INC."
SECTION 5.11 Global Securities; Non-Global Securities; Common
Securities Certificate. 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.
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 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
44
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.
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.
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.
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 or
Holders 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 in part for Certificated Preferred
Securities or for any Preferred Securities registered, and no transfer of a
Global Certificate in whole or in part
45
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 they elect to cause the
issuance of the Preferred Securities in certificated form or (iii) there shall
have occurred and be continuing an Event of Default; after the occurrence and
continuation of an Event of Default, the Holders of a majority in aggregate
Liquidation Amount of the Preferred Securities may notify the Property Trustee
in writing that they elect to cause the issuance of Preferred Securities in
certificated form. 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) and the Property Trustee, as Securities Registrar, will make an
appropriate adjustment in its records to reflect a decrease in the liquidation
preference of the relevant Global Certificate.
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.
SECTION 5.15 Restrictive Legends. The Restricted Global
Certificate and the Certificated Preferred Securities shall bear the following
legend (the "Restricted Securities Legend") unless the Depositor determines
otherwise in accordance with applicable law:
"THE PREFERRED SECURITIES EVIDENCED HEREBY, THE DEBENTURES
THAT MAY BE ISSUED IN EXCHANGE THEREFOR, THE SHARES OF COMPANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THE PREFERRED SECURITIES AND THE DEBENTURES AND THE
GUARANTEE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
46
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE TRANSFEROR AND
ANY PERSON ACTING ON BEHALF OF SUCH TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS."
The Regulation S Preferred Securities shall bear the
following legend (the "Regulation S Legend") unless the Depositor determines
otherwise in accordance with the applicable law:
"THE PREFERRED SECURITIES EVIDENCED HEREBY, THE DEBENTURES
THAT MAY BE ISSUED IN EXCHANGE THEREFOR, THE SHARES OF COMPANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THE PREFERRED SECURITIES AND THE DEBENTURES, AND THE
GUARANTEE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNLESS SUCH SECURITIES ARE
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE."
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 Limitations on Voting Rights. 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.
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
47
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.
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 this 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 or the First Supplemental 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, the First
Supplemental 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 or
the First Supplemental 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.
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
48
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
or the First Supplemental 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, the First Supplemental 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 or the First Supplemental
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.
The provisions of this Section 6.1(b) and Section 6.1(a) of
this Trust Agreement shall be in lieu of ss. 316(a)(1)(A) of the Trust Indenture
Act, and such ss. 316(a)(1)(A) is hereby expressly excluded from this Trust
Agreement and the Preferred Securities, as permitted by the Trust Indenture Act.
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
49
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 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 Trust Securities to vote on any
matters as to which such Holders are entitled to vote.
Holders of record of 50% of the Trust Securities (based upon
their Liquidation Amount) entitled to vote, 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 Trust Securities present and entitled to vote, in
person or by proxy, holding a majority of the Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote held by Holders of record
of Trust Securities present and entitled to vote, 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 $50 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
50
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 or the Administrative Trustees who call a meeting
pursuant to Section 6.3 may from time to time fix a date, not more than 90 days
prior to the date of any such 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.
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
51
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 or, in the case of ownership of any interest in any Global
Certificates, by 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).
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 fullest extent permitted by law, proceed to enforce such
rights directly against the Depositor. 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
52
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 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):
the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
the Delaware Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
each of the Property Trustee and the Delaware Trustee has
full corporate power, authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement;
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
the execution, delivery and performance by each of the
Property
53
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 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:
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
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. 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
54
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 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 has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the Trust or
to any Securityholder for such 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 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.
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.
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:
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;
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;
the Property Trustee's sole duty with respect to the custody,
safekeeping
55
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;
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;
the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
the default or misconduct of the Administrative Trustees or the Depositor; and
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. Within ten 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.
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 First Supplemental 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.
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:
is not waivable under the Indenture, the Event of Default
under this Trust Agreement shall also not be waivable; or
56
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 ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this 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 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.
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:
is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default as
provided below in this Section 8.2(d), the Event of Default under this Trust
Agreement shall also not be waivable; or
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
57
the Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Preferred Securities. The
provisions of Section 6.1(b) and this Section 8.2(d) shall be in lieu of
ss.316(a)(1)(B) of the Trust Indenture Act and such ss.316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Trust Agreement and the
Common 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.
A waiver of a Debenture 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 ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this 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:
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 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;
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
58
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;
any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
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;
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;
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;
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;
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;
the Property Trustee may execute any of the trusts or powers
59
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;
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;
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;
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
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 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
60
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:
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);
except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
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.
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.
SECTION 8.7 Property Trustee Required; Eligibility of Trustees.
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
61
$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.
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.
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.
Subject to Sections 8.9(b) and 8.9(c), Trustees (the "Relevant Trustee") may be
appointed or removed without cause at any time:
until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
after the issuance of any Trust Securities, by vote of the
Holders of a majority in Liquidation Amount of the Common Securities voting as a
class.
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.
The Trustee that acts as Delaware Trustee shall not be removed
in
62
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.
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:
No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
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
until the assets of the Trust have been completely liquidated and
the proceeds thereof distributed to the Holders of the Trust Securities;
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
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.
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).
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.
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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.
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.
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).
The indemnity provided to a Trustee under Section 8.6 shall
survive any Trustee's resignation or removal or termination of this Trust
Agreement.
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.
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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 such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.12 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. To the extent
required by the Trust Indenture Act, within 60 days after December 31 of each
year commencing with December 31, 1998 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 December 31 with respect to:
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;
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 December 31 or, if the Property Trustee has not complied in any
material respects with such obligations, a description of such noncompliance;
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
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such other information as is required by Section 313(a) of the
Trust Indenture Act.
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.
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.
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. 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. The
Property Trustee and the Delaware Trustee may be the same Person.
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.
The death, resignation, retirement, removal, bankruptcy,
dissolution, termination, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust or terminate
this Trust Agreement. 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
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number (and notwithstanding any other provision of this Trust 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. 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.
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 September 30, 2028 (the "Expiration
Date").
SECTION 9.2 Early Dissolution. The first to occur of any of
the following events is an "Early Dissolution Event":
the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
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);
the redemption, conversion or exchange of all of the Trust
Securities;
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an order for dissolution of the Trust shall have been entered
by a court of competent jurisdiction; and
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; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4 Liquidation. 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
Holder's address as it appears in the Securities Register. All notices of
liquidation shall:
state the Liquidation Date;
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
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, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
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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.
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 Trust Securities held by such Holders, and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Property Trustee for transfer or reissuance.
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
accumulated 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
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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 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 (a)
expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so 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
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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 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. 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.
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 Trust'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
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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.
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.
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.
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.
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.
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
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THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO 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 any 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) in the case of the Holder of the Common
Securities, to Pioneer-Standard Electronics, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President--Treasurer, facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇.
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 Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
73
Trust Administration, (b) with respect to the Delaware Trustee, to Wilmington
Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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: Administrative Trustees of Pioneer-Standard
Financial Trust c/o 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 the Trust and the termination of this Trust Agreement.
SECTION 10.10 Trust Indenture Act; Conflict with Trust
Indenture Act. 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.
The Property Trustee shall be the only Trustee which is the
trustee for the purposes of the Trust Indenture Act.
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.
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.
74
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, THE INDENTURE AND THE FIRST SUPPLEMENTAL 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.
ARTICLE 11
REGISTRATION RIGHTS
SECTION 11.1 Registration Rights. The Holders of the Preferred Securities, the
Debentures and the Guarantee and the shares of Common Stock of the Depositor
issuable upon conversion of the Debentures and/or the Preferred Securities are
entitled to the benefits of the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed as of the day and year first above written.
PIONEER-STANDARD ELECTRONICS, INC.,
as Depositor
75
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Assistant Vice President
--------------------------------------
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Assistant Vice President
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Administrative Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
▇▇▇▇▇▇ ▇▇▇▇▇,
as Administrative Trustee
EXHIBIT A -- Certificate of Trust of
Pioneer-Standard Financial Trust
tc "EXHIBIT A -- Certificate of Trust of
Pioneer-Standard Financial Trust"
CERTIFICATE OF TRUST
76
OF
PIONEER-STANDARD FINANCIAL TRUST
THIS Certificate of Trust of Pioneer-Standard Financial Trust
(the "Trust"), dated as of ______________, 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. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is
Pioneer-Standard Financial 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
Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
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.
Wilmington Trust Company, 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
tc "EXHIBIT B -- Form of Certificate
Depositary Agreement"
EXHIBIT C -- Form of Common Securities of
Pioneer-Standard Financial Trust
tc "EXHIBIT C -- Form of Common Securities of
77
Pioneer-Standard Financial Trust"
THE COMMON SECURITIES EVIDENCED HEREBY, THE DEBENTURES THAT MAY BE ISSUED IN
EXCHANGE THEREFOR AND THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THE COMMON SECURITIES AND THE DEBENTURES 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 (1) TO A
PERSON WHO THE TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH TRANSFEROR
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
COMPLYING WITH RULE 144A UNDER THE SECURITIES ACT, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY
PIONEER-STANDARD ELECTRONICS, INC. OR TO CERTAIN SUCCESSORS OF PIONEER-STANDARD
ELECTRONICS, INC.
Certificate Number ____ Number of Common Securities _____
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PIONEER-STANDARD FINANCIAL TRUST
6 3/4% Convertible Common Securities
(Liquidation Amount $50 per Common Security)
Pioneer-Standard Financial Trust, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Pioneer-Standard Electronics, Inc., an Ohio corporation (the "Holder"), is
the registered owner of ______________ common securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated the Pioneer-Standard Financial Trust 6 3/4% Convertible Common
Securities (Liquidation Amount $50 per Common Security) (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
78
Agreement of the Trust dated as of March 23, 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 Trust will furnish a copy of
the Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed
this certificate this ______ day of _____________, 1998.
PIONEER-STANDARD FINANCIAL 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:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
Name:
Authorized Signatory
EXHIBIT D -- Form of Preferred Securities of
Pioneer-Standard Financial Trust
79
tc "EXHIBIT D -- Form of Preferred Securities of
Pioneer-Standard Financial Trust"
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT - This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation ("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 the Trust (defined below) 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.]
["THE PREFERRED SECURITIES EVIDENCED HEREBY, THE DEBENTURES
THAT MAY BE ISSUED IN EXCHANGE THEREFOR, AND THE SHARES OF COMPANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THE PREFERRED SECURITIES AND THE DEBENTURES AND THE
GUARANTEE 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 (1) TO A PERSON WHO THE TRANSFEROR AND ANY PERSON
ACTING ON BEHALF OF SUCH TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS."]
["THE PREFERRED SECURITIES EVIDENCED HEREBY, THE DEBENTURES
THAT MAY BE ISSUED IN EXCHANGE THEREFOR, THE SHARES OF COMPANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THE PREFERRED SECURITIES AND THE DEBENTURES, AND THE
80
GUARANTEE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNLESS SUCH SECURITIES ARE
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE."]
Certificate Number ____ Number of Preferred Securities ______
CUSIP NO. 723879 20 1
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
PIONEER-STANDARD FINANCIAL TRUST
6 3/4% Convertible Preferred Securities
(Liquidation Amount $50 per Preferred Security)
Pioneer-Standard Financial 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 undivided beneficial interests in
the assets of the Trust and designated the Pioneer-Standard Financial Trust
6 3/4% Convertible Preferred Securities (Liquidation Amount $50 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 23, 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 Pioneer-Standard
Electronics, Inc., an Ohio corporation, and Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as Guarantee Trustee, dated as of March 23, 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.
81
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed
this certificate this _____ day of ________________, 1998.
PIONEER-STANDARD FINANCIAL 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:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
Name:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
82
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
D-5
[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:
Date Made
Amount of increase in Liquidation Amount of this Global Certificate including
upon exercise of overallotment option
Amount of decrease in Liquidation Amount of this Global Certificate
Liquidation Amount of this Global Certificate following such decrease or
increase
83
Signature of authorized officer of Trustee or Securities Custodian
84
D-6
EXHIBIT E -- Form of
Regulation S Certificate
tc "EXHIBIT E -- Form of
Regulation S Certificate"
REGULATION S CERTIFICATE
(For transfers pursuant to Sections 5.4(b)(i), (iii), (iv) and (v)
of the Trust Agreement)
[Property Trustee]
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Trust Preferred Securities of
Pioneer-Standard Financial Trust (the "Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 23, 1998 (as amended from time to time, the "Trust
Agreement"), among Pioneer-Standard Electronics, Inc., an Ohio corporation (the
"Company"), Wilmington Trust Company, a banking corporation organized and
existing under the laws of the State of Delaware, the Administrative Trustees
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust. Terms used herein and defined in the Trust
Agreement or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to _________ shares of Securities, which
are evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).: 723879 20 1
CERTIFICATE No(s).:
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Certificate, they are
held through the Clearing Agency or
85
participant in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Certificate, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a Person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
the Owner is not a distributor of the Securities, an Affiliate
of the Company or any such distributor or a Person acting on behalf of any of
the foregoing;
the offer of the Specified Securities was not made to a Person
in the United States;
either:
at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any Person acting on its behalf
reasonably believed that the Transferee was outside the United States, or
the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities market and
neither the Owner nor any Person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
no directed selling efforts have been made in the United
States by or on behalf of the Owner or any Affiliate thereof;
if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period, then the
requirements of Rule 904(c)(1) have been satisfied; and
the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
86
the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has elapsed
since the Specified Securities were last acquired from the Trust or from an
Affiliate of the Trust, whichever is later, and is being effected in accordance
with the applicable amount, manner of sale and notice requirements of Rule 144;
or
the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last acquired from the
Trust or from an Affiliate of the Trust, whichever is later, and the Owner is
not, and during the preceding three months has not been, an Affiliate of the
Trust.
(3) Transfer Prior to Expiration of Regulation S Restricted
Period. If the transfer is occurring prior to the expiration of the "restricted
period" under Regulation S, the interest transferred will be held immediately
thereafter through Euroclear or CEDEL.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Trust and the Transferee.
Dated:
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
EXHIBIT F -- Form of Restricted
Securities Certificate
tc "EXHIBIT F -- Form of Restricted
Securities Certificate"
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 5.4(b)(ii), (iii), (iv)
and (v) of the Trust Agreement)
[Property Trustee]
87
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Trust Preferred Securities of
Pioneer-Standard Financial Trust (the "Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 23, 1998 (as amended from time to time, the "Trust
Agreement"), among Pioneer-Standard Electronics, Inc., an Ohio corporation (the
"Company"), Wilmington Trust Company, a banking corporation organized and
existing under the laws of the State of Delaware, the Administrative Trustees
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust. Terms used herein and defined in the Trust
Agreement or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to _________ shares of Securities, which
are evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).: 723879 20 1
CERTIFICATE No(s).:
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Certificate, they are
held through the Clearing Agency or participant in the name of the Undersigned,
as or on behalf of the Owner. If the Specified Securities are not represented by
a Global Certificate, they are registered in the name of the Undersigned, as or
on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a Person (the "Transferee") who will take delivery in the form of
a Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
the Specified Securities are being transferred to a Person that
the Owner and any Person acting on its behalf reasonably believe is a "qualified
institutional buyer"
88
within the meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may be
relying on Rule 144A in connection with the transfer; and
Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has elapsed
since the Specified Securities were last acquired from the Trust or from an
Affiliate of the Trust, whichever is later, and is being effected in accordance
with the applicable amount, manner of sale, and notice requirements of rule 144;
or
the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last acquired from the
Trust or from an Affiliate of the Trust, whichever is later, and the Owner is
not, and during the preceding three months has not been, an Affiliate of the
Trust.
Regulation S Transfers. If the transfer is being effected in
accordance with Regulation S:
the transfer is being made to a Person who is not a U.S. Person;
or
the Transferee is not acquiring such Specified Securities for the
account or benefit of any U.S. Person.
This certificate and the statements contained herein are made for your
benefit and benefit of the Trust and the Transferee.
Dated:
(Print the name of the Undersigned, as such term is defined in the second
paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
89
EXHIBIT G -- Form of Unrestricted
Securities Certificate
tc "EXHIBIT G -- Form of Unrestricted
Securities Certificate"
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 5.4(c))
[Property Trustee]
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Trust Preferred Securities of
Pioneer-Standard Financial Trust (the "Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 23, 1998 (as amended from time to time, the "Trust
Agreement"), among Pioneer-Standard Electronics, Inc., an Ohio corporation (the
"Company"), Wilmington Trust Company, a banking corporation organized and
existing under the laws of the State of Delaware, the Administrative Trustees
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust. Terms used herein and defined in the Trust
Agreement or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to ________________ shares of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).: 723879 20 1
CERTIFICATE No(s).:
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Certificate, they are
held through the Clearing Agency or participant in the name of the Undersigned,
as or on behalf of the Owner. If the Specified Securities are not represented by
a Global Certificate, they are registered in the name of the Undersigned as or
on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for
90
Securities bearing no Securities Act Legend pursuant to Section 5.4(c) of the
Trust Agreement. In connection with such exchange, the Owner hereby certifies
that the exchange is occurring after a holding period of at least two years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Trust or from an Affiliate of
the Trust, whichever is later, and the Owner is not, and during the preceding
three months has not been, an Affiliate of the Trust. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Trust and the Transferee.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
EXHIBIT H -- Notice of Conversion
tc "EXHIBIT H -- Notice of Conversion"
NOTICE OF CONVERSION
To: Wilmington Trust Company,
as Property Trustee of
Pioneer-Standard Financial Trust
The undersigned owner of these Trust Securities (as that term is
defined in the Trust Agreement defined below) hereby irrevocably exercises the
option to convert these Trust Securities, or the portion below designated, into
Common Stock (the "Company Common Stock") of Pioneer-Standard Electronics, Inc.,
an Ohio corporation (the "Company"), 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 23, 1998, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇, as Administrative
91
Trustees, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust
Company, as Property Trustee, the Company, 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 Trust Securities, the undersigned hereby
directs the Conversion Agent (as that term is defined in the Trust Agreement) to
(i) exchange such Trust 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 Trust Securities set forth in the Trust Agreement)
and (ii) immediately convert such Debentures on behalf of the undersigned, into
Company Common Stock (at the conversion rate specified in the terms of the Trust
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.
Any holder, upon the exercise of its conversion rights in
accordance with the terms of the Trust Agreement and the Trust Securities,
agrees to be bound by the terms of the Registration Rights Agreement relating to
the Company Common Stock issuable upon conversion of the Trust Securities.
Date:
in whole _____ in part _____
Number of Trust Securities to be converted:
____________ Preferred
Common
If a name or names other than the undersigned, please
indicate in the spaces below the name or names in which the shares of Company
Common Stock are to be issued, along with the address or addresses of such
person or persons
Signature (for conversion only)
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Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or Other Identifying Number
Signature Guarantee:*
ADVANCE \x 72"
(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.
93
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HM Trust Agreement
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HM Trust Agreement
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HM Trust Agreement