EXHIBIT 4.11
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AMENDED AND RESTATED TRUST AGREEMENT
among
EVEREST REINSURANCE HOLDINGS, INC.,
as Depositor
THE CHASE MANHATTAN BANK,
as Property Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
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Dated as of _________ __, 200_
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EVEREST RE CAPITAL TRUST
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TABLE OF CONTENTS
ARTICLE I.DEFINED TERMS
SECTION 1.1. Definitions......................................................2
ARTICLE II.CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name............................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....13
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.13
SECTION 2.4. Issuance of the Preferred Securities............................13
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Notes........................................................13
SECTION 2.6. Continuation of Trust...........................................14
SECTION 2.7. Authorization to Enter into Certain Transactions................14
SECTION 2.8. Assets of Trust.................................................18
SECTION 2.9. Title to Trust Property.........................................18
ARTICLE III.PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................18
ARTICLE IV.DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................19
SECTION 4.2. Redemption......................................................20
SECTION 4.3. Subordination of Common Securities..............................23
SECTION 4.4. Payment Procedures..............................................23
SECTION 4.5. Withholding Tax.................................................24
SECTION 4.6. Tax Returns and Reports.........................................24
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust..............24
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions..........24
SECTION 4.9. Liability of the Holder of Common Securities....................25
SECTION 4.10. Exchanges.......................................................25
ARTICLE V.SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................26
SECTION 5.2. The Securities Certificates.....................................26
SECTION 5.3. Execution and Delivery of Securities Certificates...............26
SECTION 5.4. Book-Entry Preferred Securities.................................27
SECTION 5.5. Registration of Transfer and Exchange of Preferred Securities
Certificates....................................................29
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates....30
SECTION 5.7. Persons Deemed Holders..........................................31
SECTION 5.8. Access to List of Holders' Names and Addresses..................31
SECTION 5.9. Maintenance of Office or Agency.................................31
SECTION 5.10. Appointment of Paying Agents....................................32
SECTION 5.11. Ownership of Common Securities by Depositor.....................32
SECTION 5.12. Notices to Clearing Agency......................................33
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.....................33
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ARTICLE VI.ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................36
SECTION 6.2. Notice of Meetings..............................................37
SECTION 6.3. Meetings of Holders of the Preferred Securities.................37
SECTION 6.4. Voting Rights...................................................37
SECTION 6.5. Proxies, Etc....................................................38
SECTION 6.6. Holder Action by Written Consent................................38
SECTION 6.7. Record Date for Voting and Other Purposes.......................38
SECTION 6.8. Acts of Holders.................................................38
SECTION 6.9. Inspection of Records...........................................40
ARTICLE VII.REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee................................................40
SECTION 7.2. Representations and Warranties of Depositor.....................41
ARTICLE VIII.THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.............................42
SECTION 8.2. Certain Notices.................................................44
SECTION 8.3. Certain Rights of Property Trustee..............................45
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........48
SECTION 8.5. May Hold Securities.............................................48
SECTION 8.6. Compensation; Indemnity; Fees...................................48
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees........................................................49
SECTION 8.8. Conflicting Interests...........................................50
SECTION 8.9. Co-Trustees and Separate Trustee................................50
SECTION 8.10. Resignation and Removal; Appointment of Successor...............51
SECTION 8.11. Acceptance of Appointment by Successor..........................53
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.....54
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer
Trust...........................................................54
SECTION 8.14. Property Trustee May File Proofs of Claim.......................54
SECTION 8.15. Reports by Property Trustee.....................................55
SECTION 8.16. Reports to the Property Trustee.................................55
SECTION 8.17. Evidence of Compliance with Conditions Precedent................56
SECTION 8.18. Number of Issuer Trustees.......................................56
SECTION 8.19. Delegation of Power.............................................56
SECTION 8.20. Appointment of Administrative Trustees..........................56
[SECTION 8.21. Delaware Trustee...............................................57
ARTICLE IX.TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................57
SECTION 9.2. Early Termination...............................................57
SECTION 9.3. Termination.....................................................58
SECTION 9.4. Liquidation.....................................................58
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Issuer
Trust...........................................................60
ARTICLE X.MISCELLANEOUS PROVISIONS
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SECTION 10.1. Limitation of Rights of Holders.................................61
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust Securities.......61
SECTION 10.3. Amendment.......................................................61
SECTION 10.4. Separability....................................................63
SECTION 10.5. Governing Law...................................................63
SECTION 10.6. Payments Due on Non-Business Day................................63
SECTION 10.7. Successors......................................................64
SECTION 10.8. Headings........................................................64
SECTION 10.9. Reports, Notices and Demands....................................64
SECTION 10.10.Agreement Not to Petition.......................................65
SECTION ▇▇.▇▇.▇▇▇▇▇ Indenture Act; Conflict with Trust Indenture Act..........65
SECTION 10.12.Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture........................................66
iii
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Capital Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________, ____, 200_,
among (i) Everest Reinsurance Holdings, Inc., a Delaware corporation (including
any successors or assigns, the "Depositor"), (ii) The Chase Manhattan Bank, a
New York banking corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) Chase Manhattan Bank Delaware,
a Delaware banking corporation, as Delaware trustee (in such capacity, the
"Delaware Trustee"), (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual, ▇▇▇▇▇▇ ▇. ▇▇▇▇, an
individual and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, each of whose address is c/o
Everest Reinsurance Holdings, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (each an "Administrative Trustee" and collectively the
"Administrative Trustees" and together with the Property Trustee and the
Delaware Trustee the "Issuer Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and
one of the Administrative Trustees have heretofore created a Delaware business
trust pursuant to the Delaware Business Trust Act by entering into a Trust
Agreement, dated as of September 17, 1999 (the "Original Trust Agreement"), and
by the execution and filing by the Delaware Trustee with the Secretary of State
of the State of Delaware of the Certificate of Trust, filed on September 17,
1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees 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 of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Issuer Trust pursuant to the Underwriting Agreement and (iii)
the acquisition by the Issuer Trust from the Depositor of all of the right,
title and interest in the Notes;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section
or an Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "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 Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Notes for
such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of the Persons appointed in
accordance with Section 8.20 solely in such Person's capacity as Administrative
Trustee of the Issuer Trust and not in such Person's individual 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
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Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Clearing Agency for such Book-Entry Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of
any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or similar official) of such Person or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.10.
"Board of Directors" means the board of directors of the Depositor or
any other duly authorized committee of the board of directors of the Depositor.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of
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Directors and to be in full force and effect on the date of such certification,
and delivered to the Issuer Trustees.
"Book-Entry Preferred Security" means a Preferred Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Note Trustee is closed for business.
["Cedel" means Cedelbank (or any successor securities clearing
agency).]
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also the date
of execution and delivery of this Trust Agreement.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Securities and Exchange 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 Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust
4
Agreement, including the right to receive Distributions and a Liquidation
Distribution to the extent provided herein.
"Corporate Trust Office"means (i) when used with respect to the
Property Trustee, the office of the Property Trustee located at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and (ii) when used with respect to
the Note Trustee, the office of the Note Trustee located in at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued as Global
Preferred Securities as provided in Section 5.2 or 5.4, and (ii) Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., or any successor statute
thereto, in each case as 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 heretofore created and continued hereunder 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.
"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.
"DTC" means The Depository Trust Company or any successor thereto.
"Early Termination Event" has the meaning specified in Section 9.2.
["Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency), as operated by ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office.]
["European Preferred Securities" means Preferred Securities that are
sold to investors in Europe and settled through Euroclear and Cedel.]
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or
5
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) the occurrence of a Note Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer
Trustees and to the Depositor by the Holders of at least 33% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder, unless Holders in aggregate Liquidation Amount of
Outstanding Preferred Securities not less than the aggregate
Liquidation Amount of Outstanding Preferred Securities that gave such
notice shall agree in writing to an extension of such period prior to
its expiration; provided, however, that the Holders of such aggregate
Liquidation Amount of Outstanding Preferred Securities shall be deemed
to have agreed to an extension of such period if corrective action is
initiated by the Issuer Trustees within such period and is being
diligently pursued; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor, in its capacity as holder
of the Common Securities, and the Issuer Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Chase Manhattan Bank, as guarantee trustee,
contemporaneously with the
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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 Trust
Securities are 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.
"Indenture" means the Junior Subordinated Indenture, dated as of
October |X|, 1999, between the Depositor and the Note Trustee, as trustee, as
amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or
any successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Preferred Securities.
"Issuer Trust" means the Delaware business trust known as "Everest Re
Capital Trust" which was formed on September 17, 1999 under the Delaware
Business Trust Act pursuant to the Original Trust Agreement and the filing of
the Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Notes to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Notes to Holders of
Trust Securities in connection with a dissolution or liquidation of the Issuer
Trust, Notes having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Notes are distributed, and (c) with
respect to any distribution of
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Additional Amounts to Holders of Trust Securities, Notes having a principal
amount equal to the Liquidation Amount of the Trust Securities in respect of
which such distribution is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which assets are to be distributed
to Holders in accordance with Section 9.4 hereunder following dissolution of the
Issuer Trust.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities or Common Securities, as the
case may be.
"Note Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Note Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption of such Notes under the
Indenture, including any date fixed for redemption pursuant to the occurrence of
a Tax Event or an Investment Company Event.
"Note Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Notes" means the Depositor's |X|% Junior Subordinated Deferrable
Interest Notes issued pursuant to the Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the Issuer Trustees. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
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(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided, however, that if such Trust
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu
of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee or any Affiliate
of the Depositor or of any Issuer Trustee shall be disregarded and deemed not to
be Outstanding, except that (i) in determining whether any Issuer Trustee shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Issuer Trustee
knows to be so owned shall be so disregarded, and (ii) the foregoing shall not
apply at any time when all of the Outstanding Preferred Securities are owned by
the Depositor, one or more of the Issuer Trustees and/or any such Affiliate.
Preferred Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
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"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the Holders
in which all amounts paid in respect of the Notes will be held and from which
the Property Trustee, through the Paying Agent, shall make payments to the
Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the Issuer Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided, however, that each Note Redemption Date and the stated
maturity of the Notes shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Notes.
10
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Preferred Securities" of any particular Preferred Securities
Certificate means every Preferred Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Preferred Securities Certificate; and, for
the purposes of this definition, any Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Preferred Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Depositor or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Junior Subordinated Notes,
(ii) interest payable by the Depositor or original issue discount accruing on
the Notes is not, or within 90 days of the date of such opinion, will not be,
deductible by the Depositor, in whole or in part, for United States federal
income tax purposes, or (iii) the Issuer Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Time of Delivery" has the meaning specified in the Underwriting
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 (a) all exhibits, and (b) for all
purposes of this Trust Agreement and any such
11
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 if
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 Notes, (b) any cash on deposit in, or
owing to, the Payment Account, and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as of
September |X|, 1999, among the Issuer Trust, the Depositor and the Underwriters
named therein, as the same may be amended from time to time and includes the
Underwriting Agreement incorporated therein by reference.
"Vice President," when used with respect to the Depositor, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION II.1. Name.
The trust continued hereby shall be known as "Everest Re Capital
Trust", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Issuer Trustees, in which name the Issuer Trustees may conduct the
business of the Issuer Trust, make and execute contracts and other instruments
on behalf of the Issuer Trust and ▇▇▇ and be sued.
SECTION II.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇; Attention: Capital Markets Fiduciary Services, or such other address in
the State of Delaware as the Delaware
12
Trustee may designate by written notice to the Holders, the Depositor, the
Property Trustee and the Administrative Trustees. The principal executive office
of the Issuer Trust is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: |X|.
SECTION II.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION II.4. Issuance of the Preferred Securities.
On October |X|, 1999, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrative Trustee, on behalf of
the Issuer Trust, shall execute in accordance with Sections 5.2, 5.3 and 8.9(a)
and the Property Trustee shall deliver to the underwriters, Preferred Securities
Certificates, registered in the names requested by the underwriters, evidencing
an aggregate of |X| Preferred Securities having an aggregate Liquidation Amount
of $|X|, against receipt of the aggregate purchase price of such Preferred
Securities of $|X| by the Property Trustee.
SECTION II.5. Issuance of the Common Securities; Subscription and
Purchase of Notes.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the Property Trustee
shall deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing an aggregate of |X| Common Securities having
an aggregate Liquidation Amount of $|X|, against receipt of the aggregate
purchase price of such Common Securities of $|X|, to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer
Trust, shall subscribe for and purchase from the Depositor Notes, registered in
the name of the Property Trustee, not in its individual capacity but solely as
Property Trustee, on behalf of the Issuer Trust and having an aggregate
principal amount equal to $|X|, and, in satisfaction of the purchase price for
such Notes, the Property Trustee, on behalf of the Issuer Trust, shall deliver
to the Depositor the sum of $|X| (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4, and (ii)
the first sentence of this Section 2.5).
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SECTION II.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Notes, and (b) to engage in only those activities necessary, or incidental
thereto. The Delaware Trustee, Property Trustee and the Administrative Trustees
are trustees of the Issuer Trust, and have all the rights, powers and duties to
the extent set forth herein. The Issuer Trustees hereby acknowledge that they
are trustees of the Trust. The Property Trustee hereby declares that it will
hold the Trust Property upon and subject to the conditions set forth herein for
the benefit of the Issuer Trust and the Holders. 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 Issuer Trust.
The Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Issuer Trust for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Business Trust Act. The Delaware Trustee, the
Property Trustee and one of the Administrative Trustee, as the trustees under
the Original Trust Agreement, filed the Certificate of Trust of the Trust with
the office of the Secretary of State of Delaware, a copy of which is attached
hereto as Exhibit A, and such filing is hereby confirmed and ratified.
SECTION II.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust
in accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Issuer Trustees shall have the authority to enter
into all transactions and agreements determined by the Issuer Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees, under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Issuer Trustees, each Administrative Trustee
shall have the power and authority to act on behalf of the Issuer Trust
with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to
execute, deliver and perform on behalf of the Issuer Trust,
the Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
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(C) assisting in the registration of the Preferred
Securities under the Securities Act, and under applicable
state securities or blue sky laws and the qualification of
this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act, and with the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than
notices of default) and other information regarding the Trust
Securities and the Notes to the Holders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(G) execution of the Trust Securities on behalf of
the Issuer Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates,
if any, pursuant to the Underwriting Agreement and application
for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute on
behalf of the Issuer Trust (either acting alone or together
with the other Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to
this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Issuer Trust
with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt and holding of legal title of the
Notes;
15
(C) the collection of interest, principal and any
other payments made in respect of the Notes and the holding of
such amounts in the Payment Account;
(D) the distribution through the Paying Agent of
amounts distributable to the Holders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Notes in accordance with the
terms of this Trust Agreement;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Notes to
the Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Issuer
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware; and
(I) 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 Holders (without
consideration of the effect of any such action on any
particular Holder).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees shall not (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that
would reasonably be expected to cause the Issuer Trust to become taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes, (iv) take or consent to any action that would cause
the Notes to be treated as other than indebtedness of the Depositor for United
States federal income tax purposes, (v) incur any indebtedness for borrowed
money or issue any other debt, or (vi) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The Issuer
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any
16
of the Trust Property adverse to the interest of the Issuer Trust or the Holders
in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto and the taking
of any action necessary or desirable to sell the Preferred Securities
in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions,
if any, in which to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the determination of
any and all such acts, other than actions that must be taken by or on
behalf of the Issuer Trust, and the advice to the Issuer Trust of
actions they must take on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be executed
and filed by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the sale of the
Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of any application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of any
registration statement on Form 8-A relating to Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Issuer Trust
and to operate the Issuer Trust so that the Issuer Trust will not be deemed to
be an "investment company" required to be
17
registered under the Investment Company Act, and will not be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes and so that the Notes will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, each Administrative Trustee is authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that such Administrative Trustee determine in his or her discretion
to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Outstanding Preferred Securities. In no event shall the Administrative Trustees
be liable to the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulation or in the interpretation
thereof.
SECTION II.8. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION II.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION III.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents 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 Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
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ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION IV.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including any Additional Interest, as defined in the Indenture) are
made on the Notes. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from October |X|, 1999, and, except as provided in clause
(ii) below, shall be payable quarterly in arrears on |X|, |X|, |X| and
|X| of each year, commencing on |X|. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that,
if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date on
which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) In the event (and to the extent) that the Depositor
exercises its right under the Indenture to defer the payment of
interest on the Notes, quarterly Distributions on the Preferred
Securities shall be deferred.
(iii) Distributions shall accumulate in respect of the Trust
Securities at a rate of |X|% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period
less than a full Distribution period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable for each
full Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iv) 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 Issuer Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
19
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date. Distribution payable on any Trust Securities that are not punctually paid
on any Distribution Date as a result of the Depositor having failed to make an
interest payment under the Notes will cease to be payable to the Person in whose
name such Trust Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Trust Securities are registered on the special record date or other specified
date for determining Holders entitled to such defaulted interested established
in accordance with the Indenture.
SECTION IV.2. Redemption.
(a) On each Note Redemption Date and on the stated maturity of the
Notes, the Issuer Trust (subject, in the case of redemption, to the Property
Trustee having received notice of such redemption and of the principal amount to
be redeemed from the Depositor no later than 45 days prior to such Note
Redemption Date) will be required to redeem a Like Amount of Trust Securities at
the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined
in) the Indenture, as calculated by the Depositor, together with a
statement that it is an estimate and that the actual Redemption Price
will be calculated on the third Business Day prior to the Redemption
Date (and if an estimate is provided, a further notice shall be sent of
the actual Redemption Price on the date that such Redemption Price is
calculated);
(iii) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will
20
cease to accumulate on and after said date, except as provided in
Section 4.2(d) below; and
(v) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price; and
(vi) such other provision as the Property Trustee deems
relevant.
The Issuer Trust in issuing the Trust Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall
indicate the "CUSIP" numbers of the Trust Securities in notices of redemption
and related materials as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Notes. Redemptions of the Trust Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then by [10:00 A.M.], New York City time, on the
Redemption Date, the Depositor shall deposit sufficient funds with the Property
Trustee to pay the Redemption Price. If such deposit has been made by such time,
then 12:00 noon, New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, with respect to Book-Entry Preferred
Securities, irrevocably deposit with the Clearing Agency for such Book-Entry
Preferred Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities. With respect to Preferred Securities that are not
Book-Entry Preferred Securities, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent or Paying Agents, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent or Paying Agents irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Preferred
Securities 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 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 Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
21
Securities will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer
Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on
such Trust Securities will continue to accumulate, as set forth in Section 4.1,
from the Redemption Date originally established by the Issuer Trust for such
Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
(e) Subject to Section 4.3(a), 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 pro
rata to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based upon their
respective Liquidation Amounts not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, provided, however, that so long as the
Preferred Securities are in book-entry-only form, such selection shall be made
in accordance with the customary procedures for the Clearing Agency for the
Preferred Securities by such Clearing Agency. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Amount of Preferred Securities that has
been or is to be redeemed.
(f) Subject to the provisions of this Section 4.2 and applicable law,
the Depositor or its Affiliates may, at any time and from time to time, purchase
Outstanding Preferred Securities by tender, in the open market or by private
agreement.
SECTION IV.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Note Event of Default specified in Section 5.1(1) or 5.1(2) of
the Indenture shall have occurred
22
and be continuing, no payment of any Distribution (including any Additional
Amounts) on, Redemption Price of, or Liquidation Distribution in respect 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 any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, the Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Note Event of Default, the
Holders of the Common Securities shall have no right to act with respect to any
such Event of Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Events of Default under this
Trust Agreement with respect to the Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Preferred Securities and not on behalf of the Holders of
the Common Securities, and only the Holders of all the Preferred Securities will
have the right to direct the Property Trustee to act on their behalf.
SECTION IV.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts 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. 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 all the Common
Securities.
SECTION IV.5. Withholding Tax.
The Issuer Trust and the Administrative Trustees shall comply with all
withholding and backup withholding tax requirements under United States federal,
state and local law. The Issuer Trust shall request, and the Holders shall
provide to the Issuer Trust, such forms or certificates as are necessary to
establish an exemption from withholding and backup withholding tax with respect
to each Holder, and any representations and forms as shall reasonably be
requested by the Issuer Trust to assist it in determining the extent of, and in
fulfilling, its withholding and backup withholding tax obligations. The
Administrative Trustees shall file required forms with
23
applicable jurisdictions and, unless an exemption from withholding and backup
withholding tax is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Issuer Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of the withholding
to the Holder. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Issuer Trust
may reduce subsequent Distributions by the amount of such required withholding.
SECTION IV.6. 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
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms and
returns required to be filed in respect of the Issuer Trust by January 31 in
each taxable year of the Issuer Trust, and (b) prepare and furnish (or cause to
be prepared and furnished) to each Holder all Internal Revenue Service forms and
returns required to be provided by the Issuer Trust. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing.
SECTION IV.7. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Notes of Additional Sums and upon the written
direction of the Administrative Trustees, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
Additional Taxes imposed on the Issuer Trust by the United States or any other
taxing authority.
SECTION IV.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or any
Owner with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 5.13 of this Trust Agreement.
SECTION IV.9. Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Depositor and agrees that it shall be subject to all liabilities
to which the Depositor may be subject, and shall make all payments that the
Depositor is required to make, under the terms of the Expense Agreement.
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SECTION IV.10. Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either
case, a "Depositor Affiliated Owner/Holder") is the Owner or Holder of any
Preferred Securities, such Depositor Affiliated Owner/Holder shall have the
right to deliver to the Property Trustee all or such portion of its Preferred
Securities as it elects and receive, in exchange therefor, a Like Amount of
Notes. Such election (i) shall be exercisable effective on any Distribution Date
by such Depositor Affiliated Owner/Holder delivering to the Property Trustee a
written notice of such election specifying the Liquidation Amount of Preferred
Securities with respect to which such election is being made and the
Distribution Date on which such exchange shall occur, which Distribution Date
shall be not less than ten Business Days after the date of receipt by the
Property Trustee of such election notice and (ii) shall be conditioned upon such
Deposition Affiliate/Owner/ Holder having delivered or caused to be delivered to
the Property Trustee or its designee the Preferred Securities which are the
subject of such election by 10:00 A.M. New York time, on the Distribution Date
on which such exchange is to occur. After the exchange, such Preferred
Securities will be cancelled and will no longer be deemed to be Outstanding and
all rights of the Depositor or its Affiliate(s) with respect to such Preferred
Securities will cease.
(b) In the case of an exchange described in Section 4.10(a), the Issuer
Trust will, on the date of such exchange, exchange Notes having a principal
amount equal to a proportional amount of the aggregate Liquidation Amount of the
Outstanding Common Securities, based on the ratio of the aggregate Liquidation
Amount of the Preferred Securities exchanged pursuant to Section 4.9(a) divided
by the aggregate Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount of Common
Securities held by the Depositor (which contemporaneously shall be cancelled and
no longer be deemed to be Outstanding); provided, that the Depositor delivers or
causes to be delivered to the Property Trustee or its designee the required
amount of Common Securities to be exchanged by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur.
ARTICLE V.
SECURITIES CERTIFICATES
SECTION V.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in Section 2.3 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 Issuer Trust.
SECTION V.2. The Securities Certificates.
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(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Securities
Certificates shall be executed on behalf of the Issuer Trust by manual signature
of at least one Administrative Trustee. Securities Certificates bearing the
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall be validly
issued and entitled to the benefits 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 Securities Certificates or did not hold such offices at
the date of delivery of such Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more Global Preferred Securities
registered in the name of DTC, as Clearing Agency, or its nominee and deposited
with DTC or a custodian for DTC for credit by DTC to the respective accounts of
the Owners thereof (or such other accounts as they may direct)[, provided,
however, that upon deposit all European Preferred Securities shall be credited
by DTC to or through accounts maintained at DTC by or on behalf of Euroclear or
Cedel].
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION V.3. Execution and Delivery of Securities Certificates.
At the Time of Delivery, the Administrative Trustees shall cause
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to or upon the written order of the Depositor, executed by an authorized officer
thereof, without further corporate action by the Depositor, in authorized
denominations.
SECTION V.4. Book-Entry Preferred Securities.
(a) No Global Preferred Security may be exchanged in whole or in part
for Preferred Securities Certificates registered, and no transfer of a Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred Security or a
nominee thereof unless (i) the Clearing Agency advises the Administrative
Trustees in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Global Preferred
Security, and the Administrative Trustees are unable to locate a qualified
successor within [90] of receipt of such
26
notice, (ii) the Clearing Agency ceases to be a clearing agency registered under
the Exchange Act and the Administrative Trustees fail to appoint a qualified
successor within 90 days of such event, (iii) the Administrative Trustees at
their option advise the Property Trustee in writing that the Issuer Trust elects
to terminate the book-entry system through the Clearing Agency, or (iv) a Note
Event of Default has occurred and is continuing. Upon the occurrence of any
event specified in clause (i), (iii) or (iv) provided that in case of an event
referred to in clause (iv), the Property Trustee shall be deemed to have
knowledge thereof in accordance with the third paragraph of Section 8.2, above,
the Administrative Trustee shall notify the Clearing Agency and instruct the
Clearing Agency to notify all Owners of Book-Entry Preferred Securities, the
Delaware Trustee and the Property Trustee of the occurrence of such event and of
the availability of the Definitive Preferred Securities Certificates to Owners
of the Preferred Securities requesting the same.
(b) If any Global Preferred Security is to be exchanged for other
Preferred Securities Certificates or canceled in part, or if any other Preferred
Securities Certificate is to be exchanged in whole or in part for Book-Entry
Preferred Securities represented by a Global Preferred Security, then either (i)
such Global Preferred Security shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the aggregate Liquidation
Amount represented by such Global Preferred Security shall be reduced, subject
to Section 5.2, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such other
Preferred Securities Certificates to be so exchanged for Book-Entry Preferred
Securities represented thereby, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon surrender to the Administrative Trustees or the
Securities Registrar of the Global Preferred Security or Securities by the
Clearing Agency, accompanied by registration instructions, the Administrative
Trustees, or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar or the Issuer Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Issuer Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Holders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
(c) Every Preferred Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof, whether pursuant to this Article V or
Article IV or otherwise, shall be executed and delivered in the form of, and
shall be, a Global Preferred Security, unless such Preferred Securities
Certificate
27
is registered in the name of a Person other than the Clearing Agency for such
Global Preferred Security or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred Security for
all purposes under this Agreement and the Global Preferred Security, and Owners
with respect to a Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures. The Securities Registrar and the Issuer Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Global Preferred Securities (including the
payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities represented thereby and the giving of instructions or
directions by Owners of Book-Entry Preferred Securities represented thereby and
the giving of notices) as the sole Holder of the Book-Entry Preferred Securities
represented thereby and shall have no obligations to the Owners thereof. None of
the Issuer Trustees nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants, provided,
however, solely for the purpose of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, so long as Preferred Security Certificates in
certificated form have not been issued pursuant to Section 5.4(b), the Issuer
Trustees may conclusively rely on, and shall be fully protected in relying on,
any written instrument (including a proxy) delivered to the Property Trustee by
the Clearing Agency setting forth the Owners' votes or assigning the right to
vote on any matter to any other Persons either in whole or in part. Pursuant to
the Certificate Depository Agreement, unless and until Preferred Securities
Certificates in certificated form are issued pursuant to Section 5.4(b), the
initial Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities to
such Clearing Agency Participants, and none of the Depositor or the Issuer
Trustees shall have any responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at its
Corporate Trust Office, a register or registers (the "Securities Register") in
which the registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.11 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as
28
herein provided. The Person acting as the Property Trustee shall at all times
also be the Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
as may be required by this Trust Agreement dated the date of execution by such
Administrative Trustee or Trustees. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificate to be exchanged at
the office or agency maintained pursuant to Section 5.9.
The Securities Registrar shall not be required, (i) to issue, register
the transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to register
the transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange or for payment shall be canceled and subsequently
disposed of by the Property Trustee in accordance with such Person's customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Issuer Trust 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.
(b) Notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Preferred Securities Certificates and beneficial
interests in a Global Preferred Security of the kinds specified in this Section
5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Global Preferred Security to Global Preferred
Security. If the Holder of a Preferred Securities Certificate (other
than a Global Preferred Security) wishes at any time to transfer all or
any portion of such Preferred Securities Certificate to a Person who
29
wishes to take delivery thereof in the form of a beneficial interest in
a Global Preferred Security, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Preferred Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Preferred Security of a specified
number of Preferred Securities not greater than the number of Preferred
Securities represented by such Preferred Securities Certificate be
credited to a specified Clearing Agency Participant's account, then the
Securities Registrar shall cancel such Preferred Securities Certificate
(and issue a new Preferred Securities Certificate in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Global Preferred
Security by the Liquidation Amount represented by such Preferred
Securities so transferred as provided in Section 5.4(c).
(ii) Non-Global Preferred Security to Non-Global Preferred
Security. A Preferred Securities Certificate that is not a Global
Preferred Security may be transferred, in whole or in part, to a Person
who takes delivery in the form of another Preferred Securities
Certificate that is not a Global Preferred Security as provided in
Section 5.5(a).
(iii) Exchanges between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred Securities
Certificate that is not a Global Preferred Security as provided in
Section 5.4.
SECTION V.6. Mutilated, Destroyed, Lost or Stolen Securities
Certificates.
If (a) any mutilated 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 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
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Issuer Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
30
If any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
The provisions of this Section 5.6 are exclusive and shall preclude (
to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities Certificates.
SECTION V.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Securities Certificate shall be registered in the
Securities Register as the owner of such Securities Certificate for the purpose
of receiving Distributions and for all other purposes whatsoever, and none of
the Issuer Trustees and the Securities Registrar shall be bound by any notice to
the contrary.
SECTION V.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, the Delaware 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 V.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates the
Corporate Trust Office, Attention: Capital Markets Fiduciary Services, as its
office and agency for such purposes. The Property Trustee shall give prompt
written notice to the Depositor, the Administrative Trustees and to the Holders
of any change in the location of the Securities Register or any such office or
agency.
SECTION V.10. Appointment of Paying Agents.
The Paying Agent or Paying Agents shall make Distributions to Holders
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 solely for
the purpose of making the Distributions referred to
31
above. The Administrative Trustees may revoke such power and remove the Paying
Agent in their sole discretion. The Paying Agent shall initially be the Property
Trustee. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Property Trustee. If 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 (which shall be a bank or
trust company) to act as Paying Agent. Such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees shall execute
and deliver to the Issuer Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Issuer 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 Holders in trust for the benefit
of the Holders entitled thereto until such sums shall be paid to such Holders.
The Paying Agent shall return all unclaimed funds to the Property Trustee and
upon removal of a Paying Agent such Paying Agent shall also return all funds in
its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and
8.6 herein shall apply to the Bank also in its role as Paying Agent, for so long
as the Bank shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION V.11. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities. Neither
the Depositor nor any successor Holder of the Common Securities may transfer
less than all the Common Securities, and the Depositor or any such successor
Holder may transfer the Common Securities only (i) in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act, and applicable
state securities and blue sky laws), and in either case only upon an effective
assignment and delegation by the Holder of all the Common Securities to its
transferee of all of its rights and obligations under the Expense Agreement. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities other than as set forth in the immediately preceding sentence shall
be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating substantially
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
SECTION V.12. Notices to Clearing Agency.
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To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Security, the Issuer Trustees shall give all
such notices and communications specified herein to be given to the Clearing
Agency, and shall have no obligations to the Owners.
SECTION V.13. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer 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 Issuer 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 Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. The Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Note Event of Default, the Note Trustee fails or the holders of not less
than 33% in principal amount of the outstanding Notes fail to declare the
principal of all of the Notes to be immediately due and payable, the Holders of
at least 33% in Liquidation Amount of the Preferred Securities then Outstanding
shall have the right to make such declaration by a notice in writing to the
Property Trustee, the Depositor and the Note Trustee.
At any time after a declaration of acceleration with respect to the
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Note Trustee as provided in the Indenture, the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities, by
written notice to the Property Trustee, the Depositor and the Note Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Note
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of
the Notes,
(B) any accrued Additional Interest on all of the
Notes,
33
(C) the principal of (and premium, if any, on) any
Notes that have become due otherwise than by such declaration
of acceleration and interest and Additional Interest thereon
at the rate borne by the Notes, and
(D) all sums paid or advanced by the Note Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Note Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Notes,
other than the non-payment of the principal of the Notes that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default under the Indenture,
except a default or Event of Default in the payment of principal or interest
(unless such default or Event of Default has been cured and a sum sufficient to
pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Note Trustee) or a default or Event of
Default in respect of a covenant or provision that under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Note.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Preferred Securities a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, however, that, unless such declaration of acceleration, or rescission
and annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Note Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture, any Holder of Preferred
34
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of payment
to such Holder of any amounts payable in respect of Notes having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder (a "Direct Action"). Except as set forth in Section
5.13(b) and this Section 5.13(c), the Holders of Preferred Securities shall have
no right to exercise directly any right or remedy available to the holders of,
or in respect of, the Notes.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default 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 or impair any
right consequent thereon.
(e) The Holders of a Majority in Liquidation Amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee in
respect of this Trust Agreement or the Notes or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement; provided,
however, that, subject to Section 8.1, the Property Trustee shall have the right
to decline to follow any such direction if the Property Trustee being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the Property Trustee in good faith shall, by an officer or officers of the
Property Trustee, determine that the proceedings so directed would be illegal or
involve it in personal liability or be unduly prejudicial to the rights of
Holders not party to such direction, and provided further that nothing in this
Trust Agreement shall impair the right of the Property Trustee to take any
action deemed proper by the Property Trustee and which is not inconsistent with
such direction.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION VI.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement 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 Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
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(b) So long as any Notes are held by the Property Trustee on behalf of
the Issuer Trust, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Note Trustee,
or exercise any trust or power conferred on the Property Trustee with respect to
the Notes, (ii) waive any past default that may be waived under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Notes shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Notes, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, provided, however, that where a consent under the Indenture would
require the consent of each Holder of Notes affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee 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. Subject to Section 8.2, the Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default received with
respect to the Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Issuer Trust to be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Preferred Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes.
SECTION VI.2. Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.9 to each Holder of Preferred
Securities, at such Holder's 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.
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SECTION VI.3. Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of the Holders of the Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 33% in aggregate Liquidation Amount of the Outstanding Preferred
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a Majority of the aggregate Liquidation Amount of the Preferred Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Preferred Securities, unless this
Trust Agreement requires a lesser or greater number of affirmative votes.
SECTION VI.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION VI.5. Proxies, Etc.
At any meeting of Holders, any Holder 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 Issuer 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
Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder 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.
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SECTION VI.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of all Preferred Securities entitled to vote in
respect of such action (or such lesser or greater proportion thereof as shall be
required by any other provision of this Trust Agreement) shall consent to the
action in writing. Any action that may be taken by the Holders of all the Common
Securities may be taken if such Holders shall consent to the action in writing.
SECTION VI.7. Record Date for Voting and Other Purposes.
Except as provided in Section 5.13(b) for the purposes of determining
the Holders who are entitled to notice of and to vote at any meeting or to act
by written consent, or to participate in any distribution on the Trust
Securities in respect of which a record date is not otherwise provided for in
this Trust Agreement, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Holders or the payment of a distribution or other action,
as the case may be, as a record date for the determination of the identity of
the Holders of record for such purposes.
SECTION VI.8. Acts of Holders.
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 Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders 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 Holders 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 Issuer Trustees, if made in the manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person
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executing the same, may also be proved in any other manner that any Issuer
Trustee or Administrative Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder 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 Issuer
Trustees, the Administrative Trustees or the Issuer Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder 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 among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder or
Issuer Trustee under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such matter.
SECTION VI.9. Inspection of Records.
Upon reasonable written notice to the Administrative Trustees and the
Property Trustee, the records of the Issuer Trust shall be open to inspection by
any Holder during normal business hours for any purpose reasonably related to
such Holder's interest as a Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION VII.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 Holders that:
(a) the Property Trustee is a New York banking corporation,
duly organized, validly existing and in good standing under the laws of
the State of New York;
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(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and
does not require any approval of stockholders of the Property Trustee
and the Delaware Trustee and such execution, delivery and performance
will not (i) violate the Charter or By-laws of the Property Trustee or
the Delaware Trustee, violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware Trustee is a party or by which it is
bound, or (ii) violate any applicable law, governmental rule or
regulation of the United States or the State of Delaware, as the case
may be, governing the banking, trust or general powers of the Property
Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law of the United
States or the State of Delaware
40
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be; and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal that, individually or in the aggregate,
would materially and adversely affect the Issuer Trust or would
question the right, power and authority of the Property Trustee or the
Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION VII.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the applicable
Issuer Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Holders will be, as of each such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer 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 of this
Trust Agreement.
ARTICLE VIII.
THE ISSUER TRUSTEES
SECTION VIII.1. Certain Duties and Responsibilities.
(a) The rights, immunities, duties and responsibilities of the Issuer
Trustees shall be as provided by this Trust Agreement and, in the case of the
Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the Issuer Trustees to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its or
their rights or powers, if it or 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
41
conduct or affecting the liability of or affording protection to the Issuer
Trustees shall be subject to the provisions of this Section 8.1. Nothing in this
Trust Agreement shall be construed to release an Administrative Trustee from
liability for his or her own negligent action, his or her own negligent failure
to act, or his or her own wilful misconduct. To the extent that, at law or in
equity, an Issuer Trustee has duties and liabilities relating to the Issuer
Trust or to the Holders, such Issuer Trustee shall not be liable to the Issuer
Trust or to any Holder for such Issuer 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 Issuer Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Holders to replace such other duties and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
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 Issuer 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 Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall be entitled to enforce this Trust Agreement for the benefit of the
Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
If an Event of Default has occurred (that has not been cured or waived pursuant
to Section 5.13), the Property Trustee shall exercise such of the rights and
powers vested in it by this Trust Agreement and use the same degree of care and
skill in its exercise thereof as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(e) 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 wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the cure or waiver of all such Events of Default that may have
occurred:
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(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement (including pursuant to Section 10.10),
and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Trust Agreement (including pursuant to
Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement.
(ii) 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;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Notes and the
Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(v) 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;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties
43
under this Trust Agreement, nor shall the Property Trustee be liable
for the default or misconduct of any other Issuer Trustee or the
Depositor; and
(vii) No provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) The Administrative Trustees shall not be responsible for monitoring
the compliance by the other Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall one Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the Issuer Trustees or the Depositor.
SECTION VIII.2. Certain Notices.
Within 90 days after the occurrence of any Event of Default actually
known to the Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.9, notice of such Event of
Default to the Holders, the Administrative Trustees and the Depositor, unless
such Event of Default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
of any) or interest (including any Additional Interest) on any Trust Security,
the 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 Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities of such series. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Administrative Trustees shall transmit, in the
manner and to the extent provided in Section 10.9, notice of such exercise to
the Holders and the Administrative Trustees, unless such exercise shall have
been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee, any Holder or an officer
of the Property Trustee charged with the administration of this Trust Agreement
shall have obtained actual knowledge of such Event of Default.
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SECTION VIII.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action, (ii) in construing any of the provisions of this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with any other provisions contained herein, or (iii) the Property
Trustee is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to which the Holders of the
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor's written instruction 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 resonably shorter period of
time set forth in such notice (which to the extent may, but shall be
under no duty to, take such action, or refrain from taking such action,
as the Property Trustee shall deem advisable and in the best interests
of the Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or wilful
misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise expressly provided herein;
(d) any direction or act of an Administrative Trustee
contemplated by this Trust Agreement shall be sufficiently evidenced by
a certificate executed by such Administrative Trustee and setting forth
such direction or act;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, re-filing or re-registration
thereof;
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(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Property Trustee, the Depositor or any of
its Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon and in accordance with such advice;
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;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance
with such request or direction; provided, however, that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees, provided,
however, that the Property Trustee shall be responsible for its own
negligence or misconduct with respect to selection of any agent,
attorney, custodian or nominee appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received and (iii) shall be protected in
acting in accordance with such instructions;
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(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement;
(l) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property Trustee incurs
expenses or renders services in connection with a Bankruptcy Event,
such expenses (including legal fees and expenses of its counsel) and
the compensation for such services are intended to constitute expenses
of administration under any bankruptcy law or law relating to creditors
rights generally; and
(m) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence or bad faith on its part,
request and rely on an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer 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 such Person 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 any Issuer Trustee shall be construed to be a duty.
SECTION VIII.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities Certificates shall
be taken as the statements of the Issuer Trust and the Depositor, and the Issuer
Trustees do not assume any responsibility for their correctness. The Issuer
Trustees make no representations at to the title to, or value or condition of,
the property of the Issuer Trust or any part thereof, nor as to the validity or
sufficiency of this Trust Agreement, the Notes or the Trust Securities. The
Issuer Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Notes.
SECTION VIII.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
SECTION VIII.6. Compensation; Indemnity; Fees.
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The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such
reasonable compensation for all services rendered by them hereunder as
may be agreed by the Depositor and the Issuer Trustees from time to
time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Issuer Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of their
agents and counsel), except any such expense, disbursement or advance
as may be attributable to their negligence, bad faith or wilful
misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) any Affiliate
of any Issuer Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (iv) any
employee or agent of the Issuer Trust (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax
(other than income, franchise or other taxes imposed on amounts paid
pursuant to (a) or (b) hereof), penalty, expense or claim of any kind
or nature whatsoever incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trust hereunder, including
the reasonable costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
In the event that the Property Trustee is also acting as
Paying Agent or Securities Registrar hereunder, the rights and protections
afforded to the Property Trustee pursuant to this Article VIII shall also be
afforded to such Paying Agent or Securities Registrar.
SECTION VIII.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees.
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(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and that has at the time of such appointment a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
8.7 and to the extent permitted by the Trust Indenture Act, 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 8.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
SECTION VIII.8. Conflicting Interests.
(a) 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.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION VIII.9. Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees; except in such instances as set forth in the second following
sentence, by agreed action of the majority of such Trustees shall have
49
power to appoint, and upon the written request of the Administrative Trustees,
the Depositor shall for such purpose join with the Administrative Trustees in
the execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed necessary
or desirable, subject to the other provisions of this Section 8.9. Any
co-trustee or separate trustee appointed pursuant to this Section 8.9 shall
either be (i) a natural person who is at least 21 years of age and a resident of
the United States, or (ii) a legal entity with its principal place of business
in the United States that shall act through one or more persons authorized to
bind such entity. If the Depositor does not join in such appointment within 15
days after the receipt by it of a request to do so, or in case an Event of
Default under the Indenture shall have occurred and be continuing, the Property
Trustee alone shall have the power to make such appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, however, that, if an event of Default shall have
occurred and be continuing, the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney-in-fact therefor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by
the Property Trustee, and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged with,
the Property Trustee specified hereunder shall be exercised solely by
the Property Trustee and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
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(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.9, and, in case a Note Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigning or removed may be appointed in the manner provided
in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Depositor and, in the
case of the Property Trustee and the Delaware Trustee, to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Issuer Trust, any court in the State of Delaware for the
appointment of a successor Relevant Trustee.
Unless a Note Event of Default shall have occurred and be continuing,
the Property Trustee or the Delaware Trustee, or both of them, may be removed at
any time by Act of the Holder of Common Securities. If a Note Event of Default
shall have occurred and be continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at such time by Act of the Holders of
at least a majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities, delivered to the Relevant Trustee (in its individual capacity and on
behalf of
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the Issuer Trust). An Administrative Trustee may be removed only by the Holder
of the Common Securities at any time.
If any Issuer Trustee shall be removed or become incapable of acting as
Issuer Trustee, or if a vacancy shall occur in the office of any Issuer Trustee
for any cause, at a time when no Note Event of Default shall have occurred and
be continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Issuer
Trustee and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Note Event of Default shall have occurred and be continuing, the Holders of the
Preferred Securities, by Act of the Holders of a majority in Liquidation Amount
of the Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Issuer Trustee and the retiring Relevant Trustee shall comply
with the applicable requirements of Section 8.11. If an Administrative Trustee
shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Note Event of Default shall have occurred and be
continuing, the Holder of the Common Securities by Act of the Holder of Common
Securities delivered to the retiring Administrative Trustee shall promptly
appoint a successor Administrative Trustee and such successor Administrative
Trustee and the retiring Administrative Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holder of the Common Securities or Holders of the Preferred
Securities and accepted appointment in the manner required by Section 8.11, any
Holder who has been a Holder of Preferred Securities for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Relevant Trustee.
The Depositor shall give notice of each resignation and each removal of
the Property Trustee or the Delaware Trustee and each appointment of a successor
Property Trustee or Delaware Trustee to all Holders in the manner provided in
Section 10.8. 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 Holder of Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them, or (b)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Section 8.7).
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SECTION VIII.11. 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 with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust 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 Issuer Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall, upon payment of its charges, duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer 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 preceding paragraph.
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 VIII.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or 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 Person, succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided, however, that 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 VIII.13 Preferential Collection of Claims Against Depositor
or Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be
53
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or the Issuer Trust (or any such other obligor).
SECTION VIII.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION VIII.15. Reports by Property Trustee.
(a) Not later than November 15 of each year commencing with November
15, 2000, the Property Trustee shall transmit to all Holders in accordance with
Section 10.9, and to the Depositor, a brief report, dated as of the immediately
preceding September 15 concerning the
54
Property Trustee and its actions under this Trust Agreement if and as may be
required pursuant to Section 313(a) of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Holders such
other reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor. The Depositor shall
notify the Property Trustee of any such listing or trading.
SECTION VIII.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act, such
compliance certificate to be delivered on or before 120 days after the end of
each fiscal year of the Depositor.
SECTION VIII.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees 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 VIII.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be five, provided that the
Property Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
55
SECTION VIII.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
SECTION VIII.20. Appointment of Administrative Trustees.
(a) 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 this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
SECTION VIII.21. Delaware Trustee.
It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Issuer
Trust (i) any agreements or instruments executed and delivered by Chase
Manhattan Bank Delaware are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it, (ii) each of
the representations, undertakings and agreements herein made on the part of the
Issuer Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding only the Issuer
Trust, and (iii) under no circumstances shall Chase Manhattan Bank Delaware in
its individual capacity by personally liable for the payment of any indebtedness
or expenses of the Issuer Trust or be liable for the breach of failure of any
obligation, representation, warranty or covenant made or undertaken b the Trust
under this Trust Agreement, except if such breach or failure is due to any gross
negligence or willful misconduct of the Delaware Trustee.
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ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION XI.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on |X|, 2029 (the "Expiration Date"), and the Trust Property shall be liquidated
in accordance with Section 9.4.
SECTION IX.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event", upon the occurrence of which the Issuer Trust shall be
dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the
Holder of the Common Securities, unless the Depositor shall transfer
the Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the
Common Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer
Trust and, after satisfaction of liability of the Issuer Trust as
required by applicable law, to distribute the Notes to Holders in
exchange for the Preferred Securities (which direction is optional and
wholly within the discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the payment at maturity redemption of all the Notes;
and
(d) the entry of an order for dissolution of the Issuer Trust
by a court of competent jurisdiction.
SECTION IX.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust shall terminate upon the latest to occur of the following:
(a) the distribution by the Property Trustee to Holders of all amounts required
to be distributed hereunder upon the liquidation of the Issuer Trust pursuant to
Section 9.4, or upon the redemption of all of the Trust Securities pursuant to
Section 4.2; (b) the satisfaction of any expenses owed by the Issuer 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
Issuer Trust or the Holders.
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SECTION IX.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Notes, subject to Section 9.4(d). Notice of liquidation 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 Liquidation Date to each Holder
of Trust Securities at such Holder's address appearing in the Securities
Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Securities Certificates for Notes, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Notes to Holders,
the Property Trustee, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the
distribution of Notes in exchange for the Outstanding Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Notes will be
issued to Holders of Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) the Depositor shall use
its best efforts to have the Notes listed on the New York Stock Exchange or on
such other exchange, interdealer quotation system or self-regulatory
organization on which the Preferred Securities are then listed, (iv) Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Notes bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Securities
Certificates with respect to such Notes) and (v) all rights of Holders holding
Trust Securities will cease, except the right of such Holders to receive Notes
upon surrender of Securities Certificates.
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(d) If, 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 Notes in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Issuer Trust shall be wound-up by the
Property Trustee in such manner as the Property Trustee determines. In such
event Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer 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 the Liquidation Distribution can be
paid only in part because the Issuer 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 Issuer 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 pro rata (determined as aforesaid) with
Holders of all Trust Securities, except that, if a Note Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.
SECTION IX.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust.
The Issuer 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 Article IX.
At the request of the Holders of the Common Securities, without the consent of
the Holders the Issuer Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (A) expressly assumes all
of the obligations of the Issuer 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 have the same priority as the
Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) a trustee of such successor entity
possessing the same powers and duties as the Property Trustee is appointed to
hold the Notes, (iii) 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 that then assigns a rating to the Preferred
Securities, (iv) the Preferred Securities are listed, or any Successor
Securities will be listed upon notice of issuance, on any national securities
exchange or interdealer quotation system on which the Preferred Securities are
then listed, if any, (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
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purpose substantially identical to that of the Issuer Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the effect that (A) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect, and (B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) the Depositor or its permitted transferee
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of Holders of all of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer Trust or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes or cause the Notes to be treated as other than indebtedness of the
Corporation for United States federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION X.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy, termination,
dissolution or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor annul, dissolve or terminate the Issuer Trust nor entitle the
legal representatives or heirs of such Person or any Holder 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 X.2. Agreed Tax Treatment of Issuer Trust and Trust
Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Issuer Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including but not limited to
all payments and proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in
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the Trust Property (and payments and proceeds therefrom, respectively) for
United States federal, state and local tax purposes. The provisions of this
Trust Agreement shall be interpreted to further this intention and agreement of
the parties.
SECTION X.3. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, Administrative Trustees and the Holder of all the Common
Securities, without the consent of any Holder of the Preferred Securities, (i)
to cure any ambiguity, correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Issuer Trust will not be
taxable as a corporation or will be classified as other than a grantor trust for
United States federal income tax purposes at all times that any Trust Securities
are Outstanding or to ensure that the Notes are treated as indebtedness of the
Depositor for United States federal income tax purposes, or to ensure that the
Issuer Trust will not be required to register as an "investment company" under
the Investment Company Act; provided, however, that in the case of either
clauses (i) or (ii) such action shall not adversely affect in any material
respect the interests of any Holder.
(b) Except as provided in Section 10.3(c) hereof, any provision of this
Trust Agreement may be amended by the Property Trustee, the Administrative
Trustees and the Holders of all of the Common Securities and with (i) the
consent of Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Issuer Trustees in accordance with such amendment will not cause the Issuer
Trust to be taxable as a corporation or classified as other than a grantor trust
for United States federal income tax purposes or affect the treatment of the
Notes as indebtedness of the Corporation for United States federal income tax
purposes or affect the Issuer Trust's exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder, 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 Holder to institute suit for the
enforcement of any such payment on or after such date; and notwithstanding any
other provision herein, without the unanimous consent of the Holders, this
paragraph (c) of this Section 10.3 may not be amended.
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(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States federal income tax purposes or that would cause
the Notes to fail or cease to be treated as indebtedness of the Depositor for
United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) If any amendment to this Trust Agreement is made, the
Administrative Trustees or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) No Issuer Trustee shall be required to enter into any amendment to
this Trust Agreement that affects its own rights, duties or immunities under
this Trust Agreement. The Issuer Trustees 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 and all
conditions precedent herein provided for relating to such action have been met.
SECTION X.4. Separability.
If any provision in this Trust Agreement or in the 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 X.5. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS, PROVIDED, THAT THE IMMUNITIES AND STANDARD OF CARE
OF THE PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND
DUTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. THE PROVISIONS OF SECTION 3540 OF TITLE
12 OF THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
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SECTION X.6. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION X.7. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust and any Issuer
Trustee, including any successor by operation of law. Except in connection with
a transaction involving the Depositor that is permitted under Article VIII 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 X.8. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION X.9. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder 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 all the
Common Securities or the Depositor, to Everest Reinsurance Holdings, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: |X|, facsimile no.: |X|, or to such other address as may be specified
in a written notice by the Holder of all the Common Securities or the Depositor,
as the case may be, to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Property Trustee, the
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Delaware Trustee, the Administrative Trustees or the Issuer Trust shall be given
in writing by deposit thereof, first-class postage prepaid, in the U.S. mail,
hand delivery or facsimile transmission, addressed to such Person as follows:
(a) with respect to the Property Trustee to |X|, Attention: |X|, facsimile no.:
|X|; (b) with respect to the Delaware Trustee, to |X|, Attention: |X|; (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Administrative Trustees of Everest Re
Capital Trust", and (d) with respect to the Issuer Trust, to its principal
office specified in Section 2.1, with a copy to the Property Trustee. Such
notice, demand or other communication to or upon the Issuer Trust, the Property
Trustee or the Administrative Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Issuer Trust, the
Property Trustee or such Administrative Trustees.
SECTION X.10. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.10, the
Property Trustee agrees, for the benefit of Holders, 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 Issuer
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 estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Issuer Trust may assert.
SECTION X.11. Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions of the Trust Indenture
Act.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control.
If any provision of this Trust Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so modified or
excluded, as the case may be.
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(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
SECTION X.12. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS, THE TAX
TREATMENT PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND
SUCH OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
EVEREST REINSURANCE HOLDINGS, INC.
as Depositor
By:
----------------------------
Name:
-----------------------
Title:
----------------------
THE CHASE MANHATTAN BANK, CHASE MANHATTAN BANK DELAWARE,
as Property Trustee as Delaware Trustee
By: By:
---------------------- ----------------------------
Name: Name:
----------------- -----------------------
Title: Title:
---------------- ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee as Administrative Trustee
By: By:
---------------------- ----------------------------
Name: Name:
----------------- -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇,
as Administrative Trustee
By:
----------------------
Name:
-----------------