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Exhibit 4(f)
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AMENDED AND RESTATED TRUST AGREEMENT
AMONG
SEA PINES ASSOCIATES, INC.
as Depositor
FIRST UNION NATIONAL BANK,
as Property Trustee
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Delaware Trustee
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS (as defined herein)
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Dated as of February 1, 2000
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SEA PINES ASSOCIATES TRUST I
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TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS............................................ 2
SECTION 1.1. Definitions.............................................................. 2
ARTICLE II
CONTINUATION OF THE ISSUER TRUST................................... 10
SECTION 2.1. Name..................................................................... 10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.............. 10
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.......... 10
SECTION 2.4. Issuance of the Trust Preferred Securities............................... 10
SECTION 2.5. Issuance of the Trust Common Securities; Subscription and
Purchase or Exchange of Debentures....................................... 11
SECTION 2.6. Continuation of Issuer Trust............................................. 11
SECTION 2.7. Authorization to Enter into Certain Transactions......................... 11
SECTION 2.8. Assets of Issuer Trust................................................... 15
SECTION 2.9. Title to Trust Property.................................................. 15
SECTION 2.10. Limitation on Issuance of Trust Securities............................... 15
ARTICLE III
PAYMENT ACCOUNT........................................... 15
SECTION 3.1. Payment Account.......................................................... 15
ARTICLE IV
REDEMPTION.............................................. 16
SECTION 4.1. Distributions............................................................ 16
SECTION 4.2. Redemption............................................................... 17
SECTION 4.3. Subordination of Trust Common Securities................................. 19
SECTION 4.4. Payment Procedures....................................................... 19
SECTION 4.5. Tax Returns and Reports.................................................. 19
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust....................... 20
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions................... 20
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ARTICLE V
TRUST SECURITIES CERTIFICATES.................................... 20
SECTION 5.1. Initial Ownership........................................................ 20
SECTION 5.2. The Trust Securities Certificates........................................ 20
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.................. 21
SECTION 5.4. Registration of Transfer and Exchange of Trust Preferred Securities
Certificates............................................................. 21
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates....... 22
SECTION 5.6. Persons Deemed Holders................................................... 22
SECTION 5.7. Access to List of Holders' Names and Addresses........................... 22
SECTION 5.8. Maintenance of Office or Agency.......................................... 23
SECTION 5.9. Appointment of Paying Agent.............................................. 23
SECTION 5.10. Ownership of Trust Common Securities by Depositor........................ 23
SECTION 5.11. Rights of Holders; Waivers of Past Defaults.............................. 24
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING.................................. 26
SECTION 6.1. Limitations on Voting Rights............................................. 26
SECTION 6.2. Notice of Meetings....................................................... 27
SECTION 6.3. Meetings of Holders of the Trust Preferred Securities.................... 27
SECTION 6.4. Voting Rights............................................................ 27
SECTION 6.5. Proxies, etc............................................................. 28
SECTION 6.6. Holder Action by Written Consent......................................... 28
SECTION 6.7. Record Date for Voting and Other Purposes................................ 28
SECTION 6.8. Acts of Holders.......................................................... 28
SECTION 6.9. Inspection of Records.................................................... 29
ARTICLE VII
REPRESENTATIONS AND WARRANTIES................................... 30
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee......................................................... 30
SECTION 7.2. Representations and Warranties of Depositor.............................. 31
ARTICLE VIII
THE ISSUER TRUSTEES......................................... 31
SECTION 8.1. Certain Duties and Responsibilities...................................... 31
SECTION 8.2. Certain Notices.......................................................... 34
SECTION 8.3. Certain Rights of Property Trustee....................................... 34
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SECTION 8.4. Not Responsible for Recitals or Issuance of Trust Securities............. 36
SECTION 8.5. May Hold Trust Securities................................................ 36
SECTION 8.6. Compensation; Indemnity; Fees............................................ 36
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees...... 37
SECTION 8.8. Co-Trustees and Separate Trustee......................................... 38
SECTION 8.9. Resignation and Removal; Appointment of Successor........................ 39
SECTION 8.10. Acceptance of Appointment by Successor................................... 40
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business.............. 41
SECTION 8.12. Property Trustee May File Proofs of Claim................................ 41
SECTION 8.13. Number of Issuer Trustees................................................ 42
SECTION 8.14. Delegation of Power...................................................... 42
SECTION 8.15. Appointment of Administrative Trustees................................... 42
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER................................. 43
SECTION 9.1. Dissolution Upon Expiration Date......................................... 43
SECTION 9.2. Early Dissolution........................................................ 43
SECTION 9.3. Termination.............................................................. 44
SECTION 9.4. Liquidation.............................................................. 44
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust............................................................. 45
ARTICLE X
MISCELLANEOUS PROVISIONS....................................... 46
SECTION 10.1. Limitation of Rights of Holders.......................................... 46
SECTION 10.2. Amendment................................................................ 46
SECTION 10.3. Separability............................................................. 48
SECTION 10.4. Governing Law............................................................ 48
SECTION 10.5. Payments Due on Non-Business Day......................................... 48
SECTION 10.6. Successors............................................................... 48
SECTION 10.7. Headings................................................................. 48
SECTION 10.8. Reports, Notices and Demands............................................. 48
SECTION 10.9. Agreement Not to Petition................................................ 49
SECTION 10.10. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture............................................................ 49
SECTION 10.11. Counterparts............................................................. 49
Exhibit A Certificate of Trust
Exhibit B Form of Trust Common Securities Certificate
Exhibit C Form of Trust Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of February 1, 2000 (the
"Trust Agreement") among (i) Sea Pines Associates, Inc., a South Carolina
corporation (including any successors or assigns, the "Depositor"), (ii) First
Union National Bank, a national banking association with its corporate trust
office in the State of South Carolina, 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) First Union Trust Company,
National Association, with its principal place of business in the State of
Delaware, as Delaware trustee (in such capacity, the "Delaware Trustee"), (iv)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees being
referred to collectively as the "Issuer Trustees") and (iv) the several Holders,
as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee and one of the
Administrative Trustees have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as defined herein) by
entering into the Trust Agreement, dated December 14, 1999 (the "Original Trust
Agreement") and by the execution and filing with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on December 14, 1999 (the
"Certificate of Trust"), attached hereto 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 Trust Preferred
Securities (as defined herein) by the Issuer Trust; (ii) the issuance and sale
of the Trust Common Securities (as defined herein, and together with the Trust
Preferred Securities, the "Trust Securities") by the Issuer Trust to the
Depositor, (iii) the exchange of the Trust Preferred Securities for shares of
Series A Cumulative Preferred Stock of the Depositor (the "Preferred Stock");
(iv) the acquisition by the Trust of the Debentures in a principal amount equal
to the aggregate Liquidation Amount of the Trust Securities; and (v) the
appointment of the Property Trustee and the Administrative Trustees;
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:
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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 I 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
"Exhibit," an "Article," a "Section" or other subdivision refers to an Exhibit,
an Article, a Section or other subdivision, 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 Amounts" 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 Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons appointed in
accordance with Section 8.15 solely in such Person's capacity as Administrative
Trustee of the Issuer Trust heretofore formed and continued hereunder 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 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
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the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"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 60 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 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"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 Directors, or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been delegated and to
be in full force and effect on the date of such certification, and delivered to
the Issuer Trustees.
"Business Day" means a day other than (i) a Saturday or Sunday, (ii) 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 (iii) a day on which the
Corporate Trust Office of the Property Trustee or the Debenture Trustee is
closed for business.
"Certificate of Trust" has the meaning specified in the recitals to
this Trust Agreement.
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"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the 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 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.
"Corporate Trust Office" means when used with respect to either the
Property Trustee or the Debenture Trustee, the principal office located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture 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.
"Debentures" means the Depositor's 9.5% Junior Subordinated Deferrable
Interest Debentures, Series A, issued pursuant to the Indenture.
"Definitive Trust Preferred Securities Certificates" means Trust
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Sections 5.2 or 5.4.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the Issuer Trust heretofore formed 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.
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"Early Dissolution Event" has the meaning specified in Section 9.2.
"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 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 Debenture 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 clauses (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 25% in aggregate Liquidation Amount of the Outstanding Trust
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; 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.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by and between the Depositor and First Union National Bank, as
guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Trust 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 a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
February 1, 2000, between the Depositor and the Debenture 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.
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"Issuer Trust" means the Delaware business trust known as "Sea Pines
Associates Trust I" which was created on December 14, 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 (i) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures 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, (ii) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed and (iii) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures 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 $7.60 per Trust
Security.
"Liquidation Date" means the date of the dissolution of the Issuer
Trust pursuant to this Trust Agreement.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Trust Preferred Securities" or
"Majority in Liquidation Amount of the Trust Common Securities" means, except as
provided by the Trust Indenture Act, Trust Preferred Securities or Trust Common
Securities, as the case may be, representing more than 50% of the aggregate
Liquidation Amount of all then Outstanding Trust Preferred Securities or Trust
Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President, the Chief Executive Officer, the Chief
Financial Officer, any Vice President or the Treasurer and by 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, upon the request of the
Issuer Trustees, 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;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(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 or 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,
authenticated (if applicable) and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled 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 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, authenticated (if
applicable) and delivered pursuant to Sections 5.4, 5.5 and 5.10; provided,
however, that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Trust Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
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 (a) in determining whether any Issuer Trustee shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Trust Preferred Securities that such Issuer
Trustee knows to be so owned shall be so disregarded and (b) the foregoing shall
not apply at any time when all of the outstanding Trust Preferred Securities are
owned by the Depositor, one or more of the Issuer Trustees and/or any such
Affiliate. Trust 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 Trust Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
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"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 Debentures 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 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 Stock" means the shares of Series A Cumulative Preferred
Stock of the Depositor tendered by the holders thereof in exchange for the Trust
Preferred Securities.
"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 heretofore formed and continued hereunder
and not in its individual capacity, and 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 that each Debenture Redemption Date and the stated maturity
of the Debentures 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
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Responsible Officer," when used with respect to the Property Trustee
or the Delaware Trustee, means the Chairman or any Vice-chairman of the board of
directors, the Chairman or any Vice-chairman of the Executive Committee of the
board of directors, the Chairman of the Trust Committee, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, the Cashier, any Assistant Cashier, any Trust Officer or Assistant
Trust Officer, the Controller or any Assistant Controller or any other officer
of the Property Trustee or the Delaware Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
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"Successor Trust Preferred Securities" of any particular Trust
Preferred Securities Certificate means every Trust 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 Trust
Preferred Securities Certificate; and, for the purposes of this definition, any
Trust Preferred Securities Certificate executed, authenticated and delivered
under Section 5.5 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Trust Preferred Securities Certificate shall be deemed to evidence the
same beneficial interest in the Issuer Trust as the mutilated, destroyed, lost
or stolen Trust Preferred Securities Certificate.
"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 (i) all exhibits and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Common Securities Certificate" means a certificate evidencing
ownership of Trust Common Securities, substantially in the form attached hereto
as Exhibit B.
"Trust Common Security" means a common undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $7.60 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached
hereto as Exhibit C.
"Trust Preferred Security" means a preferred undivided beneficial
interest in the assets of the Issuer Trust, having a Liquidation Amount of $7.60
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.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit in,
or owing to, the Payment Account, and (iii) 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 Trust Common Securities or the
Trust Preferred Securities.
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"Trust Securities Certificate" means any one of the Trust Common
Securities Certificates or the Trust Preferred Securities Certificates.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "Sea Pines Associates
Trust I," 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 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is One
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Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware 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 ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
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Administrative Trustee.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust 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 2.4. Issuance of the Trust Preferred Securities.
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 8.8(a) and the Property Trustee
(or its designee) shall authenticate and deliver upon the written direction of
the Depositor, Trust Preferred Securities Certificates, registered in the names
requested by the Depositor, evidencing an aggregate of 326,300 Trust Preferred
Securities having an aggregate Liquidation Amount of $2,479,880, against receipt
by the Property Trustee (or its designee) of an equal number of shares of
Preferred Stock exchanged by the holders thereof.
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SECTION 2.5. Issuance of the Trust Common Securities; Subscription and
Purchase or Exchange of Debentures.
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 8.8(a) and the Property Trustee
shall deliver to the Depositor, Trust Common Securities Certificates, registered
in the name of the Depositor, evidencing an aggregate of 10,092 Trust Common
Securities having an aggregate Liquidation Amount of $76,699.20, against receipt
of the aggregate purchase price of such Trust Common Securities of $76,699.20.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer
Trust, shall (1) subscribe for and purchase from the Depositor, Debentures
having an aggregate principal amount equal to the aggregate Liquidation Amount
of the Trust Common Securities and (2) exchange shares of Preferred Stock with
the Depositor for Debentures having an aggregate principal amount equal to the
aggregate preference upon liquidation of such Preferred Stock (excluding accrued
and unpaid dividends), all Debentures being registered in the name of the
Property Trustee on behalf of the Issuer Trust. In satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Issuer Trust,
shall deliver to the Depositor (1) the sum of $76,699.20 and (2) an amount of
Preferred Stock (excluding accrued and unpaid dividends) having an aggregate
liquidation preference equal to the aggregate principal amount of the Debentures
exchanged therefor.
SECTION 2.6. Continuation of Issuer Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue the Trust Preferred Securities in exchange for shares of Preferred Stock,
(b) to issue the Trust Common Securities for cash, (c) to exchange such shares
of Preferred Stock and the cash paid for the Trust Common Securities for the
Debentures having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Trust Securities issued, (d) to hold the Debentures
and (d) to engage in such other activities as are necessary and incidental
thereto. The Depositor hereby reaffirms the appointment of the Delaware Trustee
and appoints and reaffirms the appointment of, as the case may be, the
Administrative Trustees as trustees of the Issuer Trust, to have all the rights,
powers and duties to the extent set forth herein and in the Delaware Business
Trust Act, and the respective Issuer Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
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.
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SECTION 2.7. 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 subsection (b) of this Section 2.7 and in accordance with clauses
(i) and (ii) herein below, 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, as the case may be, under this Trust Agreement and to
perform all acts in furtherance thereof, including, without limitation, the
following:
(i) As among the Issuer Trustees, each Administrative Trustee,
acting singly or collectively, shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) effecting the issuance of the Trust Preferred
Securities and exchanging the Trust Preferred Securities for
the Preferred Stock;
(B) effecting the issuance and sale of the Trust
Common Securities;
(C) acquiring the Debentures from the Depositor in
part through exchange of Preferred Stock and in part by
purchase;
(D) causing the Issuer Trust to enter into, and to
execute, deliver and perform such agreements as may be
necessary or desirable in connection with the purposes and
function of the Issuer Trust;
(E) if requested by the Depositor, assisting in the
registration of the Trust Preferred Securities under the
Securities Act and applicable state securities or "Blue Sky"
laws and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(F) if requested by the Depositor, assisting in the
listing of the Trust Preferred Securities upon such securities
exchange or exchanges as shall be determined by the Depositor,
with the registration of the Trust 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;
(G) assisting in the sending of notices (other than
notices of default) and other information regarding the Trust
Securities and the Debentures to the Holders in accordance
with this Trust Agreement;
(H) consenting to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Trust Agreement (which consent shall not be
unreasonably withheld);
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(I) executing the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(J) applying for a taxpayer identification number for
the Issuer Trust; and
(K) taking any action incidental to the foregoing as
the Issuer Trustees may from time to time determine to be
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) establishing the Payment Account;
(B) effecting the authentication and delivery of the
Trust Preferred Securities Certificates, upon the written
request of the Depositor, to the registered holders thereof
and the delivery of the Preferred Stock and the Trust Common
Securities to the Depositor;
(C) holding the Debentures;
(D) collecting interest, principal and any other
payments made in respect of the Debentures and holding such
amounts in the Payment Account;
(E) distributing through the Paying Agent of amounts
distributable to the Holders in respect of the Trust
Securities;
(F) exercising all of the rights, powers and
privileges of a holder of the Debentures;
(G) sending notices of default and other information
regarding the Trust Securities and the Debentures to the
Holders in accordance with this Trust Agreement;
(H) distributing the Trust Property in accordance
with the terms of this Trust Agreement;
(I) to the extent provided in this Trust Agreement,
winding up the affairs of and liquidation of the Issuer Trust
and the preparing, executing and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(J) performing the duties of the Property Trustee set
forth in this Trust Agreement;
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(K) after an Event of Default (other than under
paragraphs (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) taking 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); and
(L) exercising any of the duties, liabilities, powers
or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i)(E) and (I) herein; and in the event of a
conflict between the action of the Administrative Trustees and
the action of the Property Trustee, the action of the Property
Trustee shall prevail.
(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) incur any indebtedness for borrowed money or
issue any other debt or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Administrative
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Issuer
Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Trust 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 by the Issuer Trust of an Exchange Offer,
Prospectus and Letter of Transmittal in relation to the Trust Preferred
Securities, including any amendments thereto and the taking of any
action necessary or desirable to issue the Trust Preferred Securities
in exchange for shares of Preferred Stock of the Depositor in a
transaction or a series of transactions pursuant thereto;
(ii) the determination of the jurisdictions in which to take
appropriate action to qualify or register for offer or sale all or part
of the Trust Preferred Securities and the taking of any and all such
acts, other than actions that must be taken by or on behalf of the
Issuer Trust, and advice to the Issuer Trust of actions that must be
taken by or on behalf of the Issuer Trust, and the preparation for
execution and filing of any documents to be executed and filed by or on
behalf of the Issuer Trust, as the Depositor deems necessary or
advisable, in connection with the Exchange Offer, the Prospectus and
the Letter of Transmittal,
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including any required under federal and state securities laws with
respect to the issuance and exchange of the Trust Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of an application or
applications to such securities exchange or exchanges as shall be
determined by Depositor for listing upon notice of issuance of any
Trust Preferred Securities; and
(iv) 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 Property
Trustee and the Administrative Trustees are authorized and directed to conduct
the affairs of and to operate the Issuer Trust so that the Issuer Trust will not
be deemed to be an "investment company" required to be 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 Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, each
Administrative Trustee, the Property Trustee and the Holders of at least a
Majority in Liquidation Amount of the Trust Common Securities are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that such Administrative Trustee, the Property Trustee
or such Holders of Trust Common Securities determine in their 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 Trust Preferred Securities. In no event shall the Issuer 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 2.8. Assets of Issuer Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
SECTION 2.10. Limitation on Issuance of Trust Securities.
The aggregate principal amount of Trust Securities which may be issued
under this Trust Agreement is expressly limited to $10,000,000.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and 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 moneys 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 Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including Additional Interest, as defined in the Indenture) are made
on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from February 1, 2000. Except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, Distributions
shall be payable on a quarterly basis nine months in arrears on January
31, April 30, July 31 and October 31 of each year, commencing January
31, 2001 (at which time Distributions accruing for the period between
February 1, 2000 and April 30, 2000 shall be payable). 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, the
payment of such Distribution shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
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made on the date on which such payment was originally payable (each
date on which distributions are payable in accordance with this
subsection (a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of 9.5% (except in an Extension Period (as defined in
the Indenture) during which time Distributions will accumulate at a
rate of 11.51%) 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.
(iii) 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.
(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.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer Trust 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 Security 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, an
estimate of the Redemption Price 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) the CUSIP number or CUSIP numbers of the Trust Preferred
Securities affected (if applicable);
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(iv) 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;
(v) 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 cease to accumulate on and after said
date, except as provided in subsection (d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
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 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 or 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 Debentures. 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 Trust Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will
irrevocably deposit with the Paying Agent, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities upon surrender of their Trust
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of 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 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
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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 the priority provisions of 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 Trust Common Securities and the Trust Preferred
Securities based upon the relative Liquidation Amounts of such classes. The
particular Trust 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 Trust
Preferred Securities not previously called for redemption. The Property Trustee
shall promptly notify the Securities Registrar in writing of the Trust Preferred
Securities selected for redemption and, in the case of any Trust 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 Trust Preferred
Securities shall relate, in the case of any Trust Preferred Securities redeemed
or to be redeemed only in part, to the portion of the aggregate Liquidation
Amount of Trust Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Trust 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 the allocation provisions
of Section 4.2(e), pro rata among the Trust Common Securities and the Trust
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 Debenture Event of
Default specified in Section 5.1(a) or 5.1(b) of the Indenture shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of any Trust Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Trust Common Securities, shall
be made unless: (1) payment in full in cash of (a) all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Trust
Preferred Securities for all Distribution periods terminating on or prior
thereto, or (b) in the case of payment of the Redemption Price, the full amount
of such Redemption Price on all Outstanding Trust Preferred Securities then
called for redemption, or (c) in the case of payment of the Liquidation
Distribution, the full amount of such Liquidation Distribution on all
Outstanding Trust Preferred Securities, shall have been made or provided for,
and (2) 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 Trust Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Trust 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 Trust Preferred Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Trust Agreement with respect to the
Trust Preferred Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall
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act solely on behalf of the Holders of the Trust Preferred Securities and not on
behalf of the Holders of the Trust Common Securities, and only the Holders of
the Trust Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect
of the Trust 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 by wire transfer at the discretion of the Property Trustee. Payments
in respect of the Trust Common Securities shall be made in such manner as shall
be mutually agreed between the Property Trustee and the Holders of the Trust
Common Securities.
SECTION 4.5. 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 (i) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust and (ii) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms 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. The Issuer Trustees shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer Trust by
the United States or any other taxing authority, which were included in such
Additional Sums.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Trust Preferred
Securities with respect thereto shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section 5.8
of the Indenture or Section 5.11 of this Trust Agreement.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to 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 5.2. The Trust Securities Certificates.
(a) The Trust Preferred Securities Certificates shall be issued in
minimum denominations of $7.60 Liquidation Amount and integral multiples of
$7.60 in excess thereof and the Trust Common Securities Certificates shall be
issued in denominations of $7.60 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of the
Issuer Trust by manual or facsimile signature of at least one Administrative
Trustee, and Trust Preferred Securities Certificates shall be authenticated
pursuant to Section 5.3. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the 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 Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
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 5.4.
(b) Upon their original issuance, Trust Preferred Securities
Certificates shall be issued in the form of one or more Trust Preferred
Securities Certificates registered in the name of such Persons as the Depositor
may direct.
(c) A single Trust Common Securities Certificate representing the Trust
Common Securities shall be issued to the Depositor in the form of a definitive
Trust Common Securities Certificate.
SECTION 5.3. Execution, Authentication and Delivery of Trust Securities
Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust,
authenticated (if a Trust Preferred Security Certificate) by or on behalf of the
Property Trustee, and delivered to or upon the written order of the Depositor,
executed by one authorized officer thereof, without further corporate action by
the Depositor, in authorized denominations.
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No Trust Preferred Security shall be entitled to any benefit under this
Trust Agreement or be valid or obligatory for any purpose, unless there appears
on such Trust Preferred Security a certificate of authentication substantially
in the form provided for herein executed by the Property Trustee by the manual
signature of one of its authorized officers, and such certificate upon any Trust
Preferred Security shall be conclusive evidence, and the only evidence, that
such Trust Preferred Security has been duly authenticated and delivered
hereunder.
SECTION 5.4. Registration of Transfer and Exchange of Trust Preferred
Securities Certificates.
The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Trust Securities Certificates (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 Trust Preferred Securities
Certificates and Trust Common Securities Certificates (subject to Section 5.10
in the case of the Trust Common Securities Certificates) and registration of
transfers and exchanges of Trust Preferred Securities Certificates as 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 Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver to
the Property Trustee, and the Property Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Trust
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required (i) to issue, register
the transfer of or exchange any Trust Preferred Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Trust 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 Trust Preferred Security so
selected for redemption in whole or in part, except, in the case of any such
Trust Preferred Security to be redeemed in part, any portion thereof not to be
redeemed.
Every Trust Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or its attorney duly authorized
in writing. Each Trust Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Preferred Securities Certificates.
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SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (i) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (ii) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Issuer Trust shall execute and the Property Trustee shall authenticate (if
applicable) and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.5, 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 Trust Securities
Certificate issued pursuant to this Section 5.5 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 Trust
Securities Certificate, as if originally issued, whether or not the lost, stolen
or destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees and the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses.
Each Holder 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 5.8. 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 Trust 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 Administrative Trustees initially
designate First Union National Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, 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.
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SECTION 5.9. Appointment of Paying Agent.
The Paying Agent 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 above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. The Paying Agent shall initially be the Bank. 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 Bank
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 Trust Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Trust Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Trust Common Securities. The
Depositor may not transfer the Trust Common Securities except (i) in connection
with a consolidation or merger of the Depositor into another Person 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 thereof in compliance with
applicable law (including the Securities Act, and applicable state securities
and "Blue Sky" laws). To the fullest extent permitted by law, any attempted
transfer of the Trust Common Securities other than as set forth in the next
proceeding sentence shall be void. The Administrative Trustees shall cause each
Trust Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.10 OF THE TRUST AGREEMENT."
SECTION 5.11. 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
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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 Trust Preferred Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding Debentures
fail to declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Trust
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 Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Trust Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of
the Debentures,
(B) any accrued Additional Interest on all of the
Debentures,
(C) the principal of (and premium, if any, on) any
Debentures that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.11 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf of the Holders of all the Trust Preferred
Securities, waive any past default under the Indenture as to the Debentures,
except a default in the payment of principal or interest (unless such default
has been cured and a sum sufficient to pay all matured installments of interest
and principal
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due otherwise than by acceleration has been deposited with the Debenture
Trustee) or a 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 Debenture. 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 Trust Preferred Securities a record date shall be established for
determining Holders of Outstanding Trust 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, 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 subsection (b).
(c) For so long as any Trust 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 Debenture Event of Default specified in
Section 5.1(a) or 5.1(b) of the Indenture, any Holder of Trust Preferred
Securities shall have the right to institute a suit directly against the
Depositor, pursuant to Section 5.7 of the Indenture, for enforcement of payment
to such Holder of any amounts payable in respect of Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Trust Preferred Securities of such Holder (a "Direct Action"). Except as set
forth in subsection (b) above and this subsection (c) and except as provided in
the Indenture, the Holders of Trust Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in subsections (a), (b) and (c) above,
the Holders of at least a Majority in Liquidation Amount of the Trust Preferred
Securities may, on behalf of the Holders of all the Trust 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.
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ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. 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 Trust 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 Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures 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
Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.11 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities; provided, however, that
where a consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Trust Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities, except by a subsequent vote of the Holders of the Trust Preferred
Securities. The Property Trustee shall notify all Holders of the Trust Preferred
Securities of any notice of default received with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the Trust
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 Trust Preferred Securities, whether by way of amendment to this
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 Trust 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 Trust 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.
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SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Trust Preferred
Securities, stating the time, place and purpose of the meeting, shall be given
by the Property Trustee pursuant to Section 10.8 to each Holder of Trust
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.
SECTION 6.3. Meetings of Holders of the Trust Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Holders of the Trust Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Trust 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 Trust 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 Trust
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Trust Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Trust Preferred Securities representing
at least a Majority in aggregate Liquidation Amount of the Trust 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 Trust Preferred
Securities, unless this Trust Agreement requires a greater number of affirmative
votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $7.60 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. 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
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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.
SECTION 6.6. 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 Trust Preferred Securities entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any other provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the 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 or Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Holders, an action by written consent 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 6.8. 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 his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems sufficient.
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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 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 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 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the United States, with its
principal place of business in the State of Delaware;
(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;
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(c) the Delaware Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the United States, with
its principal place of business in the State of Delaware;
(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
have been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and do not require any approval
of stockholders of the Property Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Articles of
Association or By-laws of the Property Trustee or the Delaware Trustee, (ii)
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 (iii) violate any law, governmental rule or regulation of the State
of Delaware or the United States, 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 governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee, as the case may
be, other than the filing of the Certificate of Trust; 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 Issuer Trustees under this Trust Agreement.
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SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued on behalf of the Issuer
Trust have been duly authorized and will have been duly and validly executed,
issued and delivered by the 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, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement. 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 rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the 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 grossly
negligent action, his or her own negligent failure to act, or his or her own
willful 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
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respect of any Trust Security or for any other liability in respect of any Trust
Security. This subsection (b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing 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, 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 5.11) 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.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee or the Delaware Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement, and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Trust Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Trust 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;
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(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures 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;
(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 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.
(e) 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 either Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business 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 10.8, 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.
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
Debentures pursuant to the Indenture, the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders, 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 or a
Responsible 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 8.3. 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, security, 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 Trust 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 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 reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall, upon the request of the Property Trustee, be sufficiently
evidenced by an Officers' Certificate;
(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
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel 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;
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(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 that, nothing
contained in this subsection (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, security, 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 or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or misconduct with respect to selection of any agent or
attorney 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; and
(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.
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 8.4. Not Responsible for Recitals or Issuance of Trust
Securities.
The recitals contained herein and in the Trust 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 shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
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The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trust Administration department shall have received
written notice from the Depositor, any Holder or any other Issuer Trustee that
such funds are not legally available.
SECTION 8.5. May Hold Trust 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 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 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such compensation
as the parties shall agree from time to time 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, penalty, expense, action, suit or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person on behalf of the Issuer Trust, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence, bad
faith or wilful misconduct with respect to such acts or omissions.
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 may claim any Lien on any Trust Property as a result
of any amount due pursuant to this Section 8.6.
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SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section 8.7, 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 VIII. 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 8.8. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or from time to time, for the purpose of meeting the legal requirements
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of the
majority of such Trustees, shall have 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 8.8. Any co-trustee or separate trustee
appointed pursuant to this Section 8.8 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. In case a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have the power to make such appointment.
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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.
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 authenticated and 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.
(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 8.8 and, in case a Debenture 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.
(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.
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SECTION 8.9. 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 8.10.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.10 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Issuer Trust, any court of competent jurisdiction for the appointment of
a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the Holders
of Trust Common Securities. If a Debenture 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 a majority in
Liquidation Amount of the Trust Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holders of Trust Common Securities
at any time. In no event will the Holders of the Trust Preferred Securities have
a right to vote to appoint, remove or replace the Administrative Trustees.
If any Issuer Trustee shall resign, 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 reason, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holders of Trust Common Securities,
by Act of the Holders of Trust Common Securities, shall promptly appoint a
successor Issuer Trustee or Issuer Trustees and the retiring Issuer Trustee
shall comply with the applicable requirements of Section 8.10. 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 Debenture Event of Default shall have occurred and be
continuing, the Holders of Trust Preferred Securities, by Act of the Holders of
a majority in Liquidation Amount of the Trust Preferred Securities then
Outstanding, shall promptly appoint a successor Relevant Trustee or Trustees and
such successor Trustee shall comply with the applicable requirements of Section
8.10. If an Administrative Trustee shall resign, be removed or become incapable
of acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Holders of Trust Common Securities by
Act of the Holders of Trust Common Securities shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.10. If no successor Relevant Trustee shall have been so appointed
by the Holders of Trust Common Securities or the Holders of Trust Preferred
Securities and accepted appointment in the manner required by Section 8.10, any
Holder who has been a Holder of Trust 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.
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The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
SECTION 8.10. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee (if requested
by the Depositor) with respect to the Trust Securities shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Issuer Trust and (b) shall
add to or change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the Issuer Trust by
more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Depositor or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Issuer 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 first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such
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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 that such Person
shall be otherwise qualified and eligible under this Article VIII, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
SECTION 8.12. 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 8.13. 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 8.9.
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(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.
SECTION 8.14. 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 8.15. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an
individual, and their successors shall be appointed by the Holders of a Majority
in Liquidation Amount of the Trust Common Securities and resign or be may be
removed by the Holders of a Majority in Liquidation Amount of the Trust Common
Securities at any time. Upon any resignation or removal, the Depositor shall
appoint a successor Administrative Trustee. Each Administrative Trustee shall
sign an agreement agreeing to comply with the terms of this Trust Agreement. If
at any time there is no Administrative Trustee, the Property Trustee or any
Holder who has been a Holder of Trust Securities for at least six months may
petition any court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) 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 8.15, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Trust Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by the
unanimous acts of the remaining Administrative Trustees, if there were at least
two of them prior to such vacancy, and by the Depositor, if there were not two
such Administrative Trustees immediately prior to such vacancy (with the
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
48
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on February 1, 2055 (the "Expiration Date").
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event," upon the occurrence of which the Issuer Trust shall be
dissolved pursuant to Section 9.4:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from all of the
Holders of the Trust Common Securities at any time to dissolve the Issuer Trust
and to distribute the Debentures to Holders in exchange for the Trust Preferred
Securities (which direction is optional and wholly within the discretion of the
Holders of the Trust Common Securities);
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all the Debentures;
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction; and
(e) the expiration of the term as provided in Section 9.1.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust created and continued hereby 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 payment 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.
SECTION 9.4. Liquidation.
(a) If an Early Dissolution Event specified in clauses (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date (any such date being the
"Liquidation 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
49
law, to each Holder a Like Amount of Debentures, subject to subsection (d)
below. 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 Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the procedures
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where an Early Dissolution Event specified in Section 9.2(c)
occurs and except as provided in Section 9.4(d), in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures 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 30 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where an Early Dissolution Event specified in Section 9.2(c)
occurs and except as provided in Section 9.4(d), after the Liquidation Date, (i)
the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such Certificates to the
exchange agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Debentures
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust 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 Trust Securities
Certificates with respect to such Debentures) and (iv) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(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 Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, or if an Early
Dissolution Event specified in Section 9.2(c) occurs, 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 (other than an
Early Dissolution Event as specified in Section 9.2(c)), 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
50
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 Holders of the Trust Common Securities will be entitled to receive
Liquidation Distributions upon any such winding-up pro rata (determined as
aforesaid) with Holders of Trust Preferred Securities, except that, if a
Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of the
Indenture has occurred and is continuing, the Trust Preferred Securities shall
have a priority over the Trust Common Securities as provided in Section 4.3.
SECTION 9.5. 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 Section 9.4 or
this Section 9.5. At the request of the Holders of the Trust Common Securities,
with the consent of the Administrative Trustees, 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 Trust Preferred Securities or (b) substitutes for the Trust
Preferred Securities other securities having substantially the same terms as the
Trust Preferred Securities (the "Successor Securities") so long as the Successor
Securities have the same priority as the Trust 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 by the Depositor to hold the Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Trust Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization which assigns ratings to the Trust Preferred Securities, (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Trust Preferred Securities (including any Successor Securities) in any
material respect, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) 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
Trust 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 (vii) 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
Trust 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 entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if
51
such consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Issuer Trust or the successor entity to be classified as
an association taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity, bankruptcy,
dissolution or termination of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, or dissolve, terminate or annul 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 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Holders of all of the Trust Common Securities,
without the consent of any Holder of the Trust 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,
(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 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 Issuer Trust will not be required to register
as an "investment company" under the Investment Company Act or (iii) to permit
qualification of this Trust Agreement under any federal statute now or hereafter
in effect or any state "Blue Sky" laws if the Depositor so directs; provided,
however, that in the case of either clause (i) or (ii), such action shall not
adversely affect in any material respect the interests of any Holder, and any
such amendment of this Trust Agreement shall become effective when notice
thereof is given to the Holders.
(b) Except as provided in subsection (c), any provision of this Trust
Agreement may be amended by the Issuer Trustees and the Holders of all of the
Trust Common Securities and with (i) the consent of Holders of at least a
Majority in Liquidation Amount of the Trust 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 Issuer Trust's exemption from status as an "investment
company" under the Investment Company Act.
52
(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, subsection
(e) below may not be amended.
(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.
(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) In the event that 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) Neither the Property Trustee nor the Delaware 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 Property
Trustee shall be entitled to receive an Opinion of Counsel and, upon the request
of the Property Trustee, an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
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.
53
SECTION 10.5. 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 10.6. 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 consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other 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 (i) in the case of a Holder
of Trust Preferred Securities to such Holder as such Holder's name and address
may appear on the Securities Register and (ii) in the case of the Holder of the
Trust Common Securities, the Depositor, to Sea Pines Associates, Inc., ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as
may be specified in a written notice by the Holder of the Trust 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 Delaware Trustee, the Administrative Trustees or the
Issuer Trust shall be given in writing addressed to such Person as follows: (i)
with respect to the Property Trustee, to First Union National Bank, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration; (ii) with respect to the Delaware Trustee, to First Union Trust
Company, National Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
54
Administration; (iii) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of Sea Pines Associates Trust I"; and (iv) with respect
to the Issuer Trust, to its principal executive office specified in Section 2.2,
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
Trustee.
SECTION 10.9. 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 10.9, 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 stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustees or the Issuer Trust may assert.
SECTION 10.10. 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 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.
SECTION 10.11. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed be deemed to be an original, but all such counterparts
together constitute but one and the same instrument.
55
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
SEA PINES ASSOCIATES, INC., as Depositor
By:________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, as Property
Trustee
By:________________________________________
Name:
Title:
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
By:________________________________________
Name:
Title:
-------------------------------------,
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Administrative Trustee
-------------------------------------,
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
as Administrative Trustee
-------------------------------------,
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Administrative Trustee
56
EXHIBIT A
CERTIFICATE OF TRUST
[To be provided.]
A-1
57
EXHIBIT B
FORM OF TRUST COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.10 OF THE TRUST AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Trust Common Securities
CI-_________ _____________
Certificate Evidencing Trust Common Securities
of
Sea Pines Associates Trust I
9.5% Trust Common Securities
(liquidation amount of $7.60 per Common Security)
Sea Pines Associates Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
_____________ (the "Holder") is the registered owner of __________ (_______ )
common securities of the Issuer Trust representing common undivided beneficial
interests in the assets of the Issuer Trust and designated the 9.5% Trust Common
Securities (liquidation amount of $7.60 per Common Security) of Sea Pines
Associates Trust I (the "Trust Common Securities"). Except in accordance with
Section 5.10 of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Common
Securities are set forth in, and this certificate and the Trust Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of February 1, 2000, as the same may be amended from time
to time (the "Trust Agreement"), among Sea Pines Associates, Inc., as Depositor,
First Union National Bank, a national banking association with its corporate
trust office in the State of South Carolina, as Property Trustee, First Union
Trust Company, National Association, a national banking association with its
principal place of business in the State of Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of the Issuer Trust, including the
designation of the terms of the Trust Common Securities as set forth therein.
The Issuer Trust will furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Issuer Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
B-1
58
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this ______ day of March, 2000.
SEA PINES ASSOCIATES TRUST I
By: _________________________________
Name: _____________________,
as Administrative Trustee
B-2
59
EXHIBIT C
FORM OF TRUST PREFERRED SECURITIES CERTIFICATE
Certificate Number Number Of Trust Preferred Securities
CAI-_____ ________________
Cusip No. _______________
Certificate Evidencing Trust Preferred Securities
of
Sea Pines Associates Trust I
9.5% Trust Preferred Securities
(liquidation amount of $7.60 per Trust Preferred Security)
Sea Pines Associates Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
_________________ (the "Holder") is the registered owner of ____________________
(________________) Trust Preferred Securities of the Issuer Trust representing a
preferred undivided beneficial interest in the assets of the Issuer Trust and
designated the 9.5% Trust Preferred Securities (liquidation amount of $7.60 per
Trust Preferred Security) of Sea Pines Associates Trust I (the "Trust Preferred
Securities"). The Trust Preferred Securities are transferable on the books and
records of the Issuer Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities are set forth in, and this
certificate and the Trust Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Issuer Trust, dated as of February 1, 2000, as
the same may be amended from time to time (the "Trust Agreement"), among Sea
Pines Associates, Inc., as Depositor, First Union National Bank, a national
banking association with its corporate trust office in the State of South
Carolina, as Property Trustee, First Union Trust Company, National Association,
a national banking association with its principal place of business in the State
of Delaware, as Delaware Trustee, the Administrative Trustees named therein and
the holders, from time to time, of undivided beneficial interests in the assets
of the Issuer Trust, including the designation of the terms of the Trust
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement dated as of February 1, 2000 (the "Guarantee
Agreement"), entered into by Sea Pines Associates, Inc., and First Union
National Bank, as Guarantee Trustee, to the extent provided therein. The Issuer
Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to
the Holder without charge upon written request to the Issuer Trust at its
principal place of business.
C-1
60
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the certificate of authentication hereon has been executed by
the manual signature of the Property Trustee, this Trust Preferred Security
shall not be entitled to any benefit under the Trust Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate as of the date written below.
DATED: , 20
SEA PINES ASSOCIATES TRUST I
By: ___________________________________
Name: _____________________,
as Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Trust Agreement.
FIRST UNION NATIONAL BANK, as Property
Trustee
By:
------------------------------------
Authorized Signatory
C-2
61
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Preferred Securities Certificate to:
------------------------------------------------
(Insert assignee's social security or tax identification number)
------------------------------------------------
------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Trust Preferred Securities Certificate on the books of
Sea Pines Associates Trust I. The agent may substitute another to act for him or
her.
Date:
-----------------------
Signature:
------------------------------------
(Sign exactly as your name appears on the other side of this Trust
Preferred Securities Certificate). The signature(s) should be guaranteed by an
eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
Signature Guaranty: _____________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of First Union National Bank, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by First Union
National Bank in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
C-3