Exhibit 4(e)
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AMENDED AND RESTATED
TRUST AGREEMENT
between
MIDAMERICAN ENERGY COMPANY, as Depositor
and
THE FIRST NATIONAL BANK OF CHICAGO,
FIRST CHICAGO DELAWARE INC.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇ ▇▇▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustees
Dated as of , 1996
MIDAMERICAN ENERGY FINANCING I
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MidAmerican Energy Financing I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ----------------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10
----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.03. Initial Contribution of Trust Property, Organizational
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.04. Issuance of the Preferred Securities . . . . . . . . . . . . 15
Section 2.05. Subscription and Purchase of Debentures; Issuance of the
Common Securities . . . . . . . . . . . . . . . . . . . . . 15
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . . . . . . . 16
Section 2.07. Authorization to Enter into Certain Transactions . . . . . . 16
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.09. Title to Trust Property . . . . . . . . . . . . . . . . . . . 20
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.03. Subordination of Common Securities . . . . . . . . . . . . . . 24
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . . . . . 25
ii
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.02. The Trust Securities Certificates . . . . . . . . . . . . . . 25
Section 5.03. Execution and Delivery of Trust Securities Certificates . . . 26
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates . . . . . . . . . . . . . . . . . . 26
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . . . . . . . 27
Section 5.07. Access to List of Securityholders' Names and Addresses . . . . 27
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . . . . . . 28
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . . . . . . 28
Section 5.10. Ownership of Common Securities by Depositor . . . . . . . . . 29
Section 5.11. Definitive Preferred Securities Certificates . . . . . . . . . 29
Section 5.12. Book-Entry System . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.13. Rights of Securityholders . . . . . . . . . . . . . . . . . . 30
Section 5.14. Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . . . . . . . 31
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 32
Section 6.03. Meetings of Holders of Preferred Securities . . . . . . . . . 33
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.05. Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.06. Securityholder Action by Written Consent . . . . . . . . . . . 33
Section 6.07. Record Date for Voting and Other Purposes. . . . . . . . . . . 34
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . . . . . . . 34
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.02. Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . 36
iii
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . . . . . . 37
Section 8.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.03. Certain Rights of Property Trustee . . . . . . . . . . . . . . 38
Section 8.04. Not Responsible for Recitals or Issuance of Securities . . . . 41
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . . . . . . 41
Section 8.06. Compensation; Fees; Indemnity . . . . . . . . . . . . . . . . 42
Section 8.07. Certain Trustees Required; Eligibility . . . . . . . . . . . . 42
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . . . . . . 43
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . . . . . . . 43
Section 8.10. Resignation and Removal; Appointment of Successor . . . . . . 45
Section 8.11. Acceptance of Appointment by Successor . . . . . . . . . . . . 46
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.13. Preferential Collection of Claims Against Depositor or
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.14. Reports by Property Trustee . . . . . . . . . . . . . . . . . 47
Section 8.15. Reports to the Property Trustee . . . . . . . . . . . . . . . 47
Section 8.16. Evidence of Compliance with Conditions Precedent . . . . . . . 47
Section 8.17. Number of Trustees . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.18. Delegation of Power . . . . . . . . . . . . . . . . . . . . . 48
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.20 Outside Business . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . . . . . . . 50
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . . . . . . 50
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of Obligations . . 52
Section 10.02. Limitation of Rights of Securityholders . . . . . . . . . . . 52
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.04. Separability . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 54
iv
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . . . . . . . 55
Section 10.10. Conflict with Trust Indenture Act . . . . . . . . . . . . . . 55
EXHIBITS
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . Certificate of Trust
Exhibit B . . . . . . . . . . . . . . . . . . . . Common Securities Certificate
Exhibit C . . . . . . . . . . . . . . . Agreement as to Expenses and Liabilities
Exhibit D . . . . . . . . . . . . . . . . . . . Preferred Securities Certificate
v
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________ ___, 1996,
between (i) MidAmerican Energy Company, an Iowa corporation (the
"Depositor"), (ii) The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States,
as trustee (the "Property Trustee" and, in its separate capacity and not in
its capacity as Property Trustee, the "Bank"), (iii) First Chicago Delaware
Inc., a corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, J. ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, each an individual, as trustee, and each of whose address is c/o
MidAmerican Energy Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and
the Administrative Trustees referred to collectively as the "Trustees") and
(v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
--------------------
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as the Administrative Trustee, have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
October 24, 1996 (the "Original Trust Agreement"), and by the execution by
the Property Trustee, the Delaware Trustee and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
Administrative Trustee, and filing with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated October 24, 1996, a copy of
which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware Trustee and ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, as Administrative Trustee, desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the issuance of
the Preferred Securities by the Trust and (iv) the appointment of additional
Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of each other
party and for the benefit of the Securityholders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
ACT:
The term "Act" has the meaning specified in Section 6.08.
ADDITIONAL AMOUNT:
The term "Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the sum of the amount of
Additional Interest Attributable to Taxes and Additional Interest
Attributable to Deferral (each as defined in the Subordinated Indenture) paid
by the Depositor on a Like Amount of Debentures for such period.
ADMINISTRATIVE TRUSTEE:
The term "Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in their capacities as Administrative Trustees of the Trust
created hereunder and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
2
AFFILIATE:
The term "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 the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
BANK:
The term "Bank" has the meaning specified in the preamble to this
Trust Agreement.
BANKRUPTCY EVENT:
The term "Bankruptcy Event" means, with respect to any Person:
(i) 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 Federal bankruptcy law or any other
applicable Federal or State 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
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of 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 Federal bankruptcy law or any other applicable Federal
or State law, or the consent by it to the filing of 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.
3
BANKRUPTCY LAW:
The term "Bankruptcy Laws" has the meaning specified in Section 10.09.
BOARD RESOLUTION:
The term "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 a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
BUSINESS DAY:
The term "Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (z) a day on which
the Property Trustee's Corporate Trust Office or the Debenture Trustee's
principal corporate trust office is closed for business.
CERTIFICATE OF TRUST:
The term "Certificate of Trust" has the meaning specified in
Section 2.07(d).
CLEARING AGENCY:
The term "Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
CLOSING DATE:
The term "Closing Date" means the date of delivery of this Trust
Agreement.
CODE:
The term "Code" means the Internal Revenue Code of 1986, as amended.
COMMISSION:
The term "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.
4
COMMON SECURITY:
The term "Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
COMMON SECURITYHOLDER:
The term "Common Securityholder" means a Securityholder that holds Common
Securities.
COMMON SECURITIES CERTIFICATE:
The term "Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the principal office of the
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Trust Agreement is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, except that, with
respect to presentation of the Preferred Securities for payment or
registration of transfers or exchange and the location of the register, such
term means the office or agency of the Trustee at which at any particular
time its corporate agency business shall be conducted, which at the date of
original execution of this Trust Agreement is located as c/o First Chicago
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Window ▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
COVERED PERSON:
The term "Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates; and (b) any Holder of Trust Securities.
DEBENTURE EVENT OF DEFAULT:
The term "Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
5
DEBENTURE REDEMPTION DATE:
The term "Debenture Redemption Date" means "Redemption Date" as defined
in the Subordinated Indenture with respect to the Debentures.
DEBENTURE TRUSTEE:
The term "Debenture Trustee" means The First National Bank of Chicago,
as trustee under the Subordinated Indenture.
DEBENTURES:
The term "Debentures" means the $_______ aggregate principal amount of
the Depositor's _______% Deferrable Interest Subordinated Debentures,
Series_____,due ________, issued pursuant to the Subordinated Indenture.
DEFINITIVE PREFERRED SECURITIES CERTIFICATES:
The term "Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
DELAWARE BUSINESS TRUST ACT:
The term "Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. C. Section 3801 ET SEQ., as it may be amended from
time to time.
DELAWARE TRUSTEE:
The term "Delaware Trustee" means the Delaware corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
DEPOSITOR:
The term "Depositor" has the meaning specified in the preamble to this
Trust Agreement.
DISTRIBUTION DATE:
The term "Distribution Date" has the meaning specified in Section 4.01(a).
6
DISTRIBUTIONS:
The term "Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
EARLY TERMINATION EVENT:
The term "Early Termination Event" has the meaning specified in
Section 9.02.
EVENT OF DEFAULT:
The term "Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the 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
(iii) default by the Trust in the payment of any Redemption
Price, plus accumulated and unpaid distributions of any Trust Security
when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose
performance or breach is specifically dealt with in clause (ii) or
(iii), 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 Trust by the Holders of at least 10% in Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
EXCHANGE ACT:
The term "Exchange Act" has the meaning specified in Section 2.07(c).
7
EXPENSE AGREEMENT:
The term "Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
EXPIRATION DATE:
The term "Expiration Date" shall have the meaning specified in
Section 9.01.
GUARANTEE:
The term "Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The First National Bank of Chicago, a national banking
association, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
HOLDER:
The term "Holder" has the same meaning assigned to Securityholder herein.
INDEMNIFIED PERSON:
The term "Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the Trust
or its Affiliates.
LIEN:
The term "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:
The term "Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities plus
accumulated and unpaid Distributions to the
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date of such payment and (ii) Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
LIQUIDATION AMOUNT:
The term "Liquidation Amount" means the stated amount of $25 per Trust
Security.
LIQUIDATION DATE:
The term "Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.04(a).
LIQUIDATION DISTRIBUTION:
The term "Liquidation Distribution" has the meaning specified in
Section 9.04(d).
MATURITY DATE:
The term "Maturity Date" has the meaning specified in the Subordinated
Debenture.
OFFER:
The term "Offer" has the meaning specified in Section 2.07(c).
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant
to Section 8.16 shall be the principal executive, financial or accounting
officer of the Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
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(c) a statement that each 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 each such
officer, such condition or covenant has been complied with.
OPINION OF COUNSEL:
The term "Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of the Trust, the Property Trustee, the
Delaware Trustee or the Depositor, and who shall be reasonably acceptable to
the Property Trustee.
ORIGINAL TRUST AGREEMENT:
The term "Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
OUTSTANDING:
The term "Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this Trust
Agreement, including pursuant to Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by
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the Depositor, any Trustee or any Affiliate of the Depositor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such 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 Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustee the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
OWNER:
The term "Owner" means each Person who is the beneficial owner of a
Preferred Securities Certificate as reflected in the records of the Securities
Depository or, if a Securities Depository Participant is not the beneficial
owner, then as reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in accordance with the
rules of such Securities Depository.
PAYING AGENT:
The term "Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be The First National
Bank of Chicago.
PAYMENT:
The term "Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee at The First National
Bank of Chicago, or such other banking institution as the Depositor shall
select, in its trust department for the benefit of the Securityholders in which
all amounts paid in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
PERSON:
The term "Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
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PREFERRED SECURITY:
The term "Preferred Security" means a cumulative quarterly income
preferred security representing an undivided beneficial interest in the assets
of the Trust having a Liquidation Amount of $25 and having rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
PREFERRED SECURITIES CERTIFICATE:
The term "Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit D.
PROPERTY TRUSTEE:
The term "Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
REDEMPTION DATE:
The term "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 shall be a Redemption
Date for a Like Amount of Trust Securities.
REDEMPTION PRICE:
The term "Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security.
REGISTRAR:
The term "Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The First National Bank
of Chicago.
RELEVANT TRUSTEE:
The term "Relevant Trustee" shall have the meaning specified in
Section 8.10.
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RESPONSIBLE OFFICER:
The term "Responsible Officer," when used with respect to the Property
Trustee means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matter.
SECURITIES DEPOSITORY:
The term "Securities Depository" shall be The Depository Trust
Company.
SECURITIES DEPOSITORY PARTICIPANT:
The term "Securities Depository Participant" means an institution
which deposits securities with a Securities Depository for holding thereby.
SECURITIES REGISTER:
The term "Securities Register" shall mean the Securities Register
described in Section 5.04.
SECURITYHOLDER OR HOLDER:
The term "Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
SUBORDINATED INDENTURE:
The term "Subordinated Indenture" means the Indenture, dated as of
__________, 1996, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
TRANSFER AGENT:
The term "Transfer Agent" shall mean one or more transfer agents for
the Preferred Securities appointed by the Trust and shall be initially The First
National Bank of Chicago.
TRUST:
The term "Trust" means the Delaware business trust created by the
Original Trust Agreement and continued hereby and identified on the cover page
to this Trust Agreement.
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TRUST AGREEMENT:
The term "Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Amended and Restated 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 Amended and Restated Trust
Agreement and any such modification, amendment or supplement, respectively.
TRUST INDENTURE ACT:
The term "Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
TRUST PROPERTY:
The term "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 by the Property Trustee pursuant to the trusts of this Trust Agreement.
TRUST SECURITY:
The term "Trust Security" means any one of the Common Securities or
the Preferred Securities.
TRUST SECURITIES CERTIFICATE:
The term "Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
UNDERWRITING AGREEMENT:
The term "Underwriting Agreement" means the Underwriting Agreement,
dated as of _______________ , 1996, among the Trust, the Depositor and the
underwriters named therein.
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ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall be known as
"MidAmerican Energy Financing _", in which name the Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address in Delaware as
the Delaware Trustee may designate by written notice to the Securityholders and
the Depositor. The principal place of business of the Trust is c/o MidAmerican
Energy Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 2.03. 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 Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED SECURITIES. On ___________ ,
1996 the Depositor and an Administrative Trustee, on behalf of the Trust,
both executed and delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate, registered in the
name of the nominee of The Depositary Trust Company, having an aggregate
Liquidation Amount of $ _______________.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF
THE COMMON SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered in the name
of the Property Trustee and having an aggregate principal amount equal to
$____________, and, in satisfaction of the purchase price for such Debentures,
(x) one of the Administrative Trustees, on behalf of the Trust, shall execute
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of ____ Common Securities having
an aggregate Liquidation Amount of $ ___________, and (y) the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of $ ____________
representing the proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
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SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. (a) The exclusive purposes and functions of the Trust
are (i) to issue Trust Securities and invest the proceeds thereof in Debentures,
and (ii) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein. The
Property Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of the Trust
and the Securityholders. The Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. Anything in this Trust Agreement to
the contrary notwithstanding, 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 Trust
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and Article VIII and in accordance with the following provisions
(A) and (B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the Trust,
the Underwriting Agreement, Expense Agreement, and such agreements as
may be necessary or desirable in connection with the consummation of
the transactions contemplated by the Underwriting Agreement (such
execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
(iv) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
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(v) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities upon such securities
exchange or exchanges as shall be determined by the Depositor and the
registration of the Preferred Securities under the Exchange Act, and
the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent, a Transfer Agent and a
Registrar in accordance with this Trust Agreement (subject to
Section 5.09);
(viii) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(ix) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary
or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(iv) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(vi) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
17
(vii) as provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the execution of
the certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State of
Delaware; and
(viii) the taking of any ministerial action incidental to
the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to protect and conserve the
Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall have
none of the duties, powers or authority of the Administrative Trustee set forth
in Section 2.07(a)(A) or the Depositor set forth in Section 2.07(c). The
Property Trustee shall have the power and authority to exercise all of the
rights, powers and privileges of a holder of Debentures under the Subordinated
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee may, for the benefit of Holders of the Trust Securities, in its
discretion proceed to protect and enforce its rights as holder of the Debentures
subject to the rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall cause the Trust not to (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States federal
income tax purposes and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property. The
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission
and to execute a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments thereto;
18
(ii) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing and to execute any
documents to be executed and filed by the Trust or on behalf of
the Trust, as the Depositor deems necessary or advisable in order
to comply with the applicable laws of any such States;
(iii) to prepare for filing by the Trust and to execute
an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of any Preferred Securities and to file
or cause the Administrative Trustees to file thereafter with such
exchange or market such notifications and documents as may be
necessary from time to time to maintain such listing;
(iv) to prepare for filing by the Trust with the Commission
and to execute a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section 12(b)
of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), including any amendments thereto;
(v) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
(vi) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Securities ("Offer") and negotiate the terms of an
Underwriting Agreement and pricing agreement providing for the
Offer; and
(vii) to take any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or classified other than as a "grantor trust" for United
States federal income tax purposes and not as an association taxable as a
corporation and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
subject to the provisions of Section 10.03, the Depositor and the Administrative
Trustees are authorized to take any action,
19
not inconsistent with applicable law, the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust (as
amended or restated from time to time, the "Certificate of Trust") or this
Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes,
as long as such action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the Trust shall consist
of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust
Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustees and the Paying Agent
appointed by the Administrative Trustees shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Holders of Trust Securities 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 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.
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ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from the Closing Date,
and, except in the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section 311 of the
Subordinated Indenture, shall be payable quarterly in arrears on March 1, June
1, September 1 and December 1 of each year, commencing on ___________, 199_. If
any date on which Distributions are 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 which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of _____% per annum of the Liquidation Amount of the Trust Securities.
The amount of Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day year and for any
period shorter than a full month, on the basis of the actual number of days
elapsed. If the interest payment period for the Debentures is extended pursuant
to Section 311 of the Subordinated Indenture, then Distributions on the
Preferred Securities will be deferred for the period equal to the extension of
the interest payment period for the Debentures and the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is equal to the
aggregate amount of interest (including, to the extent permitted by law,
interest payable on unpaid interest at the percentage rate per annum set forth
above, compounded quarterly) that accrues during any such extended interest
payment period on the Debentures. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
funds available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust
21
Securities on the relevant record date, which shall be 15 days prior to the
relevant Distribution Date.
w SECTION 4.02. REDEMPTION.
(a) On each Debenture Redemption Date and on the Maturity Date of the
Debentures, the Property Trustee will be required to redeem a Like Amount of
Trust Securities at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment.
(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 or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Dividends to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment will
become due and payable upon each such Trust Security to be redeemed
and that interest thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price plus accumulated and unpaid Distributions to
the date of such payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price plus accumulated and unpaid Distributions to the date of such
payment shall be deemed payable on each Redemption Date only to the extent that
the Trust has funds immediately available in the Payment Account for such
payment.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent (or Securities Depository, in the
event the Preferred Securities are book-entry only) funds
22
sufficient to pay the applicable Redemption Price plus accumulated and unpaid
Distributions to the date of such payment and will give the Paying Agent (or
Securities Depository, as the case may be) irrevocable instructions and
authority to pay the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment to the Holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then on the Redemption Date, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right of
such Securityholders to receive the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment, but without interest
thereon, and such Trust Securities will cease to be outstanding. In the
event that any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and unpaid
Distributions to such date shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any
such delay). In the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust Securities
called for redemption is improperly withheld or refused and not paid either
by the Trust or by the Depositor pursuant to the Guarantee, Distributions on
such Trust Securities will continue to accrue, at the then applicable rate,
from the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price plus accumulated and unpaid
Distributions is actually paid, in which case the actual payment date will be
deemed the date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the Holders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be the fifteenth day
prior to the Redemption Date.
(f) 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 3% to the Common Securities and 97%
to the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or integral multiples thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Transfer Agent and Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any
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Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
SECTION 4.03. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of plus accumulated and unpaid
Distributions on, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price plus accumulated and unpaid Distributions the full amount of
such Redemption Price plus accumulated and unpaid Distributions on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or Redemption Price of plus accumulated and unpaid
Distributions on, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any such Event of Default under this Trust Agreement until
the effect of all such Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated. Until any such
Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders ofthe Preferred Securities
and not on behalf of the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments of Distributions in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Securities Depository,
such Distributions shall be made to the Securities Depository, which shall
credit the relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments of Distributions in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Administrative Trustees and the Holder of the Common Securities.
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SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
direction, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service Form 1041 (or
any successor form) required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be provided on such
form. The Administrative Trustees shall provide the Depositor and the Property
Trustee with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation of the Trust by
the contribution by the Depositor referred to in Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
SECTION 5.02. THE TRUST SECURITIES CERTIFICATES. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. Subject to Section 2.04 relating to the
original issuance of the Preferred Securities Certificate registered in the name
of the nominee of The Depository Trust Company, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed on behalf of
the Trust by facsimile signature, countersigned by a Transfer Agent or its
agent. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent or its agent,
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
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
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SECTION 5.03. EXECUTION 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 2.04 and 2.05, to be executed on behalf of the Trust, and in the case
of Preferred Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written order of the
Depositor signed by its chairman of the board, any of its vice presidents or its
Treasurer, without further corporate action by the Depositor, in authorized
denominations. The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred without
negligence arising out of or in connection with any such countersigning by it.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES. The Registrar shall keep or cause to be kept, at its
principal corporate office, a Securities Register in which, subject to such
reasonable regulations as it may prescribe, the Registrar shall provide for the
registration of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees, or any one of them, shall execute on behalf
of the Trust by manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent to countersign
and deliver, in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.08.
Every 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 the Administrative Trustees and a
Transfer Agent duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Administrative Trustees in accordance with customary practice. The
Trust shall not be required to (i) issue, register the transfer of, or exchange
any Preferred Securities during a period beginning at the opening of business 15
calendar days before the day of mailing of a notice of redemption of any
Preferred Securities called for redemption and ending at the close of business
on the day of such mailing or (ii) register the transfer of or exchange any
Preferred Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Securities being redeemed in part.
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No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but a Transfer Agent may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred Securities
Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to a Transfer Agent, or if a Transfer Agent shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer Agent and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them and the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute by manual or facsimile signature and, if execution on
behalf of the Trust is by facsimile signature, countersigned by a Transfer
Agent; and the Administrative Trustees, or any one of them, shall 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, the Administrative Trustees or
the Transfer Agent 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 shall
constitute conclusive evidence of an ownership interest in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Registrar shall be entitled to treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities Register
as the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustee nor
the Registrar shall be bound by any notice to the contrary.
SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of the most recent Record Date. If Holders
of Trust Securities Certificates evidencing ownership at such time and for the
previous six months of not less than 25% of the outstanding aggregate
Liquidation Amount apply in writing to any Administrative Trustee, and
27
such application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor 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 5.08. MAINTENANCE OF OFFICE OR AGENCY. The Company shall or
shall cause the Transfer Agent to maintain in the Borough of Manhattan, The City
of New York, an office or offices or agency or agencies where Preferred
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or the Transfer
Agent in respect of the Trust Securities Certificates may be served. The
Company initially designates the Corporate Trust Office of the Property Trustee
as its office for such purposes. The Company shall or shall cause the Transfer
Agent to give prompt written notice to the Depositor, the Property Trustee and
to the Securityholders of any change in any such office or agency.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Securityholders from the Payment Account and shall report
the amounts of such distributions to the Administrative Trustees and the
Property Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account for the purpose of making the Distributions
referred to above. The Property Trustee shall be entitled to rely upon a
certificate of the Paying Agent stating in effect the amount of such funds so to
be withdrawn and that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one of them may
revoke such power and remove the Paying Agent if the Administrative Trustees or
any one of them determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The Paying Agent
shall be permitted to resign upon 30 days' written notice to the Administrative
Trustees and the Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor to act as Paying
Agent (which shall be a bank, trust company or an Affiliate of the Depositor).
The Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee
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and upon resignation or removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the requirements
with respect to paying agents of securities issued pursuant to the Trust
Indenture Act. 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 COMMON SECURITIES BY DEPOSITOR. On the
Closing Date, the Depositor shall acquire, and thereafter retain, beneficial and
record ownership of the Common Securities. Any attempted transfer of the Common
Securities shall be void. The Administrative Trustees shall cause each Common
Securities Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE". Common Securities Certificates representing
the Common Securities shall be issued to the Depositor in the form of a
typewritten or definitive Common Securities Certificate.
SECTION 5.11. DEFINITIVE PREFERRED SECURITIES CERTIFICATES. The
Definitive Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees, or any one of them. The Trust shall issue no
Securities in bearer form.
SECTION 5.12. BOOK-ENTRY SYSTEM. Some or all of the Preferred
Securities may be registered in the name of the Securities Depository or a
nominee therefor, and held in the custody of the Securities Depository. In such
event, a single certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the Owners of such
Preferred Securities will not receive physical delivery of certificates for
Preferred Securities. Except as provided herein, all transfers of beneficial
ownership interests in such Preferred Securities will be made by book-entry
only, and no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities will receive, hold
or deliver any certificate for Preferred Securities. The Depositor, the
Trustees and the Paying Agent will recognize the Securities Depository or its
nominee as the Holder of Preferred Securities for all purposes, including
notices and voting; PROVIDED, that solely for the purposes of determining
whether the Holders of the requisite amount of Preferred Securities have voted
on any matter provided for in this Trust Agreement, with respect to the vote by
Owners of Preferred Securities registered in the name of a Securities
Depository, or its nominee, the Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Trustees by such Securities Depository setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a successor
thereto and enter into a letter
29
of representations or other agreement with such Securities Depository to
establish procedures with respect to the Preferred Securities. Any
Securities Depository shall be a Clearing Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred Securities is
determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred
Securities shall be deemed modified with respect to such Preferred Securities to
meet the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while such
Preferred Securities are in a book-entry system, be satisfied by the notation on
the books of the Securities Depository in accordance with applicable state law.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than an undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default that relates to the Debentures, the Debenture
Trustee fails or the holders of not less than 33% in principal amount of the
Debentures then outstanding fail to declare the principal of the Debentures to
be immediately due and payable, the Holders of at least 33% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on the Debentures
shall become immediately due and payable, provided that the payment of principal
and interest on the Debentures shall remain subordinated to the extent provided
in the Subordinated Indenture.
(c) For so long as any Preferred Securities remain Outstanding, if
the holders of the Debentures fail to waive any past Debenture Event of Default
under the Subordinated Indenture and its consequences with respect to the
Debentures, the Holders of not less than a majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of
30
all the Preferred Securities, waive any such past default and its
consequences with respect to the Debentures, except a default in the payment
of principal, premium or interest or a default in respect of a covenant or
provision which under the Subordinated 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.
(d) For so long as any Preferred Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Subordinated Indenture, upon a Debenture Event of Default
specified in Section 801(a) or 801(b) of the Subordinated Indenture, any Holder
of Preferred Securities shall have the right to institute a proceeding directly
against the Depositor, pursuant to Section 808 of the Subordinated Indenture,
for enforcement of payment to such Holder of the principal amount of or interest
on Debentures having a principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action"). The Depositor will be
subrogated to the rights of any such Holder to the extent of payment made to
such Holder pursuant to this Section 5.13(d).
(e) Except as set forth in this Section 5.13, the Holders of
Preferred Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Debentures.
SECTION 5.14. AGREED TAX TREATMENT. Each Preferred Security issued
hereunder shall provide that the Company and, by its acceptance of a Preferred
Security or a beneficial interest therein, the Owner of, and any Person that
acquires a beneficial interest in, such Preferred Security agree that, for
United States federal, state, and local tax purposes, it is intended that such
Preferred Security constitute an undivided interest in indebtedness and agree to
treat such Preferred Security accordingly for such purposes.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 6.01, in Section 10.03 and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
31
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 813 of
the Subordinated 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 Subordinated
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least 66 2/3% of
the aggregate Liquidation Amount of the Outstanding Preferred Securities;
provided, however, that where a consent under the Subordinated Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of Holders of the Preferred
Securities, except pursuant to a subsequent vote of Holders of the Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the Trust will
be classified as a "grantor trust" and not as an association taxable as a
corporation for United States federal income tax purposes on account of such
action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in Liquidation Amount of the
Outstanding Preferred Securities. No amendment to this Trust Agreement may be
made if, as a result of such amendment, the Trust would not be classified as a
"grantor trust" but as an association taxable as a corporation for United States
federal income tax purposes.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section 10.08
to each Holder of a Preferred Security, at the registered address of such
Holder, at least 15 days and not more than 90 days before the meeting. At any
such meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting may
be held as adjourned without further notice.
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SECTION 6.03. MEETINGS OF HOLDERS OF PREFERRED SECURITIES. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Holders of 25% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) and may, at any time
in their discretion, call a meeting of Holders of Preferred Securities to vote
on any matters as to which the Holders of Preferred Securities are entitled to
vote.
Holders of 50% of the then Outstanding Preferred Securities (based
upon their aggregate Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Securities present, in person or by proxy, holding more
than the lesser of (x) 66 2/3% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Securities present, either in person or by proxy, at such
meeting and (y) 50% of the Outstanding Preferred Securities (based upon their
aggregate Liquidation Amount) shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled to
one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or prior to its
exercise, or, if earlier, until eleven months after it is sent and the burden of
proving invalidity shall rest on the challenger.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding Trust
Securities entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any
33
express provision of this Trust Agreement) shall consent to the action in
writing (based upon their aggregate Liquidation Amount).
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of any
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders 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 the Administrative Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders 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
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than the individual capacity of such signer, such certificate or affidavit
shall also constitute sufficient proof of the authority of such signer. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done,
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omitted or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between or among the Securityholders and
the Administrative Trustees with respect to the authenticity, validity or
binding nature of any request, demand, authorization, direction, consent, waiver
or other Act of such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
35
(d) the execution, delivery and performance by the Property Trustee
of this Trust Agreement will not violate, conflict with or constitute a breach
of the Property Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee contemplated herein require 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 Federal
or state law governing the banking or trust powers of the Property Trustee.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee represents and
warrants for the benefit of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) 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;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware Trustee
of this Trust Agreement will not violate the Delaware Trustee's charter or
by-laws; and
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Delaware Trustee contemplated herein require 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 Federal
or Delaware law governing the corporate powers of the Delaware Trustee.
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ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act, and no implied covenants or obligations shall be read into
this Trust Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require any of the
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. No Trustee, other than the
Property Trustee, shall be liable for its acts or omissions hereunder unless as
a result of its gross negligence or willful misconduct. Notwithstanding
anything contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on liability afforded
to the Property Trustee under the provisions of the Trust Indenture Act and, to
the extent applicable, Rule 3A-7 under the Investment Company Act of 1940, as
amended, or any successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property and only to the extent that there shall be sufficient
income or proceeds from the Trust Property to enable the Property Trustee or
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) All duties and responsibilities of the Property Trustee contained
in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
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
37
liability afforded to the Property Trustee under this Trust Agreement,
the Trust Indenture Act and, to the extent applicable, Rule 3a-7 under
the Investment Company Act of 1940, as amended;
(ii) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) 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. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account established by the Property Trustee pursuant to this
Trust Agreement and except to the extent otherwise required by law;
and
(iv) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. Within five Business Days after
the occurrence of any Event of Default, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.08, notice of any default
known to the Property Trustee to the Securityholders and the Depositor, unless
such default shall have been cured or waived. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) 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, direction,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (B) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained
38
herein or (C) 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 Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be
taken. The Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action
not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for
its own bad faith, negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities which might be incurred by it in complying
with such request or direction;
(vi) 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,
direction, consent, order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, unless requested in writing to do so by
39
one or more Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Property Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Depositor
personally or by agent or attorney;
(vii) 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, and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder, provided
that the Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with knowledge of
any default or Event of Default with respect to the Trust Securities
unless either (1) a Responsible Officer of the Property Trustee shall
have actual knowledge of the default or Event of Default or (2)
written notice of such default or Event of Default shall have been
given to the Property Trustee by the Depositor, the Administrative
Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation; and no permissive
or discretionary power or authority available to the Property Trustee
shall be construed to be a duty;
(xi) 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;
40
(xii) 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 tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) 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; and
(xiv) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (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.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust or the Depositor,
and the Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the property
of the Trust or any part thereof or as to the title of the Trust thereto or
as to the security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited with any
Trustees hereunder, nor as to the validity or sufficiency of this Trust
Agreement or the Trust Securities. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
SECTION 8.05. MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee or
such other agent.
41
SECTION 8.06. COMPENSATION; FEES; INDEMNITY.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee, any Affiliate of any
Trustee, and any officer, director, shareholder or employee
of any Trustee for, and to hold each of them harmless
against, any and all loss, damage, claims, liability or
expense as incurred without negligence (gross negligence, in
the case of any Administrative Trustee), bad faith or
willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Depositor
under this Section, each of the Trustees shall have a lien prior to the Trust
Securities upon all property and funds held or collected by such Trustee as
such, except funds held in trust for the payment of Distributions on the
Trust Securities.
The provisions of this Section shall survive the termination of
this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY.
(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
has a combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall
42
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII.
(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
such 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 that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to
bind such entity.
SECTION 8.08. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Trust Agreement. The Subordinated Indenture and the Guarantee Agreement
shall be deemed to be specifically described in this Trust Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless a Debenture Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Depositor shall for such purpose join with the
Property Trustee 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
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. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Event of Default
under the Subordinated Indenture has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
43
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:
(1) The Trust Securities shall be executed and
delivered 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 Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) 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.
(3) 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
8.09, and, in case an Event of Default under the
Subordinated Indenture 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 resigned
or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
44
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written
notice thereof to the Common Securityholders. If the instrument of
acceptance by a successor Trustee required by Section 8.11 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the resigning Relevant Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the
Common Securityholder. If a Debenture Event of Default shall have occurred
and be continuing, the Property Trustee may be removed at such time only by
Act of the Securityholders of a majority of the aggregate Liquidation Amount
of the Outstanding Preferred Securities, delivered to the Property Trustee
(in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no Debenture Event
of Default shall have occurred and be continuing, the Common Securityholder,
by Act of the Common Securityholder delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred Securities
delivered to the retiring Property Trustee, shall promptly appoint a
successor Property Trustee, and such successor Property Trustee shall comply
with the applicable requirements of Section 8.11. If no successor Trustee
shall have been so appointed by the Common Securityholders or the Preferred
Securityholders and accepted appointment in the manner required by Section
8.11, any Securityholder who has been a Securityholder for at least six
months may, on behalf of such Securityholder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
The retiring Relevant Trustee shall give notice of each resignation
and each removal of the Relevant Trustee and each appointment of a successor
Trustee to the Common Securityholders in the manner provided in Section 10.08
and shall give notice to the Depositor. Each notice shall include the name
and address of the successor Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
45
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 incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the
unanimous act of remaining Administrative Trustees if there are at least two
of them or (ii) otherwise by the Depositor (with the successor in each case
being a Person who satisfies the eligibility requirements for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of
the appointment hereunder of a successor Trustee, the retiring Relevant
Trustee and each successor Trustee shall execute and deliver an instrument
wherein each successor Trustee shall accept such appointment and which shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and upon the execution and delivery of such
instrument the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Trust or any successor Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and
the Trust.
Upon request of any such successor Trustee, the retiring Relevant
Trustee shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware Trustee
or any Administrative Trustee or any 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 Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, provided 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.
46
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR TRUST. If and when the Property Trustee shall be or become a creditor of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), the Property Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. Such of those reports as are
required to be transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60 days after May
15 of each year, commencing May 15, 1997.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor. The Depositor will notify the Property Trustee when any
Trust Securities are listed on any stock exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and
the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee any documents, reports and information required, and the
compliance certificate required, by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement (including
any covenants compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in the
form of an Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that Depositor,
by written instrument may increase or decrease the number of Administrative
Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a),
or if the number of
47
Trustees is increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. 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 2.07(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 the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Trust Agreement shall not be liable to the Trust or to any other Covered
Person for its 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 an Indemnified Person otherwise existing at law or
in equity (other than the duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered
Person; or
48
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act, whenever in this Trust Agreement an
Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
reasonably desires, including its own interests, and
shall have no duty or obligation to give any
consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
SECTION 8.20 OUTSIDE BUSINESS. The Depositor and any Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. Neither the Depositor, nor
any Trustee, shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and the Depositor or any
Trustee shall have the right to take for its own account (individually or as
a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Trustee may engage or be interested in
any financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
49
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically dissolve on _____________, ______ (the "Expiration Date") and
the Trust Property shall be distributed in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of any
of the following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is wholly optional and within the discretion
of the Depositor) to dissolve the Trust and distribute
the Debentures to Securityholders in accordance with
Section 9.04;
(iv) an order for judicial dissolution of the
Trust having been entered by a court of competent
jurisdiction;
the Trust shall dissolve and the Trustees shall take such action
as is required by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations
and responsibilities of the Trustees and the Trust created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts required to be distributed hereunder upon
the final payment of the Trust Securities; (ii) the payment or
provision for payment of any expenses owed by the Trust; (iii)
the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders and
(iv) the filing of a certificate of cancellation under the
Delaware Business Trust Act.
SECTION 9.04. LIQUIDATION. (a) Upon the occurrence
of the Expiration Date or an Early Termination Event specified in
clause (i), (iii) or (iv) of Section 9.02, after satisfaction of
all liabilities of the Trust to its creditors, if any, as
provided by applicable law, the Trust shall be liquidated by the
Property Trustee as expeditiously as the Property Trustee
determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section
9.04(d). Notice of liquidation shall be given by the
50
the Administrative Trustees by first-class mail, postage prepaid, mailed not
later than 30 nor more than 60 days prior to the Liquidation Date to each Holder
of Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent 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 9.04(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(ii) or 9.04(d) applies, in order to
effect the liquidation of the Trust, if any, and distribution of the Debentures
to Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(ii) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates (or, at the election of the Depositor, a global
Debenture, subject to the provisions of the Subordinated Indenture) representing
a Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities Certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its reasonable efforts to have the Debentures listed on the New York Stock
Exchange or on such other securities exchange or other organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities Certificates are so
surrendered (and until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or
51
otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust Property
shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or
other termination of the Trust, Securityholders will be entitled to receive
out of the assets of the Trust available for distribution to Securityholders,
after satisfaction of liabilities owed by the Trust to its creditors, if any,
as provided by applicable law, an amount equal to the Liquidation Amount per
Trust Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The
Holder of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a requirement
that time lapse or notice be given, the Preferred Securities shall have a
priority over the Common Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries"), and agrees to
assume liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders or other similar interests
in the Trust the amounts due such Holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be. This guarantee
and assumption is intended to be for the benefit, of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death or
incapacity of any person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such person or any Securityholder for such
person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
52
SECTION 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trust (on approval of a majority of the Administrative Trustees and the
Depositor, without the consent of any Securityholders), (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will not be classified for United States federal income tax purposes other than
as a "grantor trust" and not as an association taxable as a corporation at any
time that any Trust Securities are outstanding or to ensure the Trust's
exemption from the status of an "investment company" under the Investment
Company Act of 1940, as amended; provided, however, that, except in the case of
clause (ii), such action shall not adversely affect in any material respect the
interests of any Securityholder and, in the case of clause (i), any amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the Administrative Trustees
and the Depositor with (i) the consent of Holders of Trust Securities
representing not less than a majority (based upon Liquidation Amounts) of the
Outstanding Trust Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust for federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an "investment company" under the Investment Company Act of 1940, as
amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Trustees, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor or any Trustee.
53
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) The Property Trustee is entitled to receive an Opinion of Counsel
as conclusive evidence that any amendment to this Trust Agreement executed
pursuant to this Section 10.03 is authorized or permitted by, and conforms to,
the terms of this Section 10.03, has been duly authorized by and lawfully
executed and delivered on behalf of the other requisite parties, and that it is
proper for the Property Trustee under the provisions of this Section 10.03 to
join in the execution thereof.
SECTION 10.04. 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 10.05. GOVERNING LAW. This Trust Agreement and the rights
and obligations of each of the Securityholders, the Trust and the 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
regard to conflict of laws principles).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustees or any of them, including any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to MidAmerican Energy Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer, facsimile no. ▇▇▇-▇▇▇-▇▇▇▇, with
a copy to the Secretary, facsimile no. ▇▇▇-▇▇▇-▇▇▇▇. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in
54
writing addressed (until another address is published by the Trust) as
follows: (i) with respect to the Property Trustee or the Delaware Trustee,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration with a copy to: First Chicago
Delaware Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (ii) with
respect to the Trust or the Administrative Trustees, at the address above for
notice to the Depositor, marked "Attention: Administrative Trustees for
MidAmerican Energy Financing I". Such notice, demand or other communication
to or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust or the Property Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the Trustees and
the Depositor agrees for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, it shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement, insolvency, liquidation
or other similar law (including, without limitation, the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Depositor takes action in violation of this Section 10.09, the
Property Trustee agrees, for the benefit of Securityholders, that it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the Trust may assert.
The provisions of this Section 10.09 shall survive the termination of this Trust
Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR
ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
55
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND THE GUARANTEE AND THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
56
IN WITNESS WHEREOF, the parties have caused this Trust Agreement to be duly
executed, all as of the day and year first above written.
MIDAMERICAN ENERGY COMPANY
By:
---------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO ,
As Property Trustee
By:
---------------------------------------
Title:
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
---------------------------------------
Title:
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
solely in his capacity as
Administrative Trustee
---------------------------------------
J. ▇▇▇ ▇▇▇▇▇▇
solely in her capacity as
Administrative Trustee
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
solely in his capacity as
Administrative Trustee
57
EXHIBIT A
CERTIFICATE OF TRUST
OF
MIDAMERICAN ENERGY FINANCING I
THIS CERTIFICATE OF TRUST of MidAmerican Energy Financing I (the
"Trust"), dated as of October 24, 1996, is being duly executed and filed by the
undersigned, as trustees, to create a business trust under the Delaware Business
Trust Act (12 DEL. C. Section 3801, ET SEQ.).
1. Name. The name of the business trust being created hereby is
MidAmerican Energy Financing I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware are
First Chicago Delaware Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Effective Date. This Certificate of Trust shall be effective as
of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
FIRST CHICAGO DELAWARE INC., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
-------------------------------- --------------------------------
Name: Name:
Title: Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity
but solely as Trustee
By:
-----------------------------------
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
MIDAMERICAN ENERGY FINANCING I
Common Securities
(Liquidation Amount $25 per Common Security)
MidAmerican Energy Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
MidAmerican Energy Company (the "Holder") is the registered owner of _____
(_____) common securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the Common Securities
(liquidation amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined below) the
Common Securities are not transferable and any attempted transfer hereof shall
be void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______ ___, 1996, as the same may be
amended from time to time (the "Trust Agreement"). The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ____ day of
_________, 199 .
MIDAMERICAN ENERGY
FINANCING I
By:
-----------------------------------
not in his (her) individual
capacity, but solely as
Administrative Trustee
2
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between MidAmerican Energy
Company, an Iowa corporation ("MidAmerican Energy"), and MidAmerican Energy
Financing I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from MidAmerican Energy and to issue its
___% Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of ________ __, 1996 as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, MidAmerican Energy is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each holder of
the Preferred Securities, which acceptance MidAmerican Energy hereby agrees
shall benefit MidAmerican Energy and which acceptance MidAmerican Energy
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, MidAmerican Energy, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. ASSUMPTION BY MIDAMERICAN ENERGY. Subject to the
terms and conditions hereof, MidAmerican Energy hereby irrevocably and
unconditionally assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries").
As used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than (i) obligations of the Trust to pay to holders of
any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be and (ii) obligations arising out
of the negligence, willful misconduct or bad faith of the Trustees of the
Trust. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries
have received notice hereof.
Section 1.02. TERM OF AGREEMENT. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under
the Guarantee Agreement dated the date hereof by MidAmerican Energy and The
First National Bank of Chicago, as guarantee trustee, or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.03. WAIVER OF NOTICE. MidAmerican Energy hereby waives
notice of acceptance of this Agreement and of any Obligation to which it
applies or may apply, and MidAmerican Energy hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
Section 1.04. NO IMPAIRMENT. The obligations, covenants,
agreements and duties of MidAmerican Energy under this Agreement shall in no
way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust or
any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, MidAmerican Energy with respect to the happening of
any of the foregoing.
Section 1.05. ENFORCEMENT. A Beneficiary may enforce this
Agreement directly against MidAmerican Energy and MidAmerican Energy waives
any right or remedy to require that any action be brought against the Trust
or any other person or entity before proceeding against MidAmerican Energy.
ARTICLE II
Section 2.01. BINDING EFFECT. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of MidAmerican Energy and shall inure to the
benefit of the Beneficiaries.
Section 2.02. AMENDMENT. So long as there remains any Beneficiary
or any Preferred Securities of any series are outstanding, this Agreement
shall not be modified or
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amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt
of an answer-back, if sent by telex), to wit:
MidAmerican Energy Financing I
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Administrative Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
MidAmerican Energy Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Treasurer
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above written.
3
(Clearing Agency Legend)
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
MIDAMERICAN ENERGY FINANCING I
_____% Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
MidAmerican Energy Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of _____ (_____) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the MidAmerican Energy Financing I ____%
Cumulative Quarterly Income Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 or 5.11 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of __________, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the benefits of the
Guarantee Agreement of MidAmerican Energy Company, an Iowa corporation (the
"Company"), and The First National Bank of Chicago, as guarantee trustee, dated
as of _____________, 1996 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the holder
of this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
The Company and, by its acceptance of these Preferred Securities or a
beneficial interest therein, the owner of, and any person that acquires a
beneficial interest in, these Preferred Securities agree that, for United States
federal, state and local tax purposes, it is intended that these Preferred
Securities constitute an undivided interest in indebtedness and agree to treat
these Preferred Securities accordingly for such purposes.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate for and on behalf of the Trust.
Dated: MIDAMERICAN ENERGY FINANCING I
By:
-------------------------------------
[ ]
not in his (her) individual capacity,
but solely as Administrative Trustee
[TRANSFER AGENT]
2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
of the Preferred Securities
represented by this Preferred
Securities Certificate and
irrevocably appoints
-----------------------------------
attorney to transfer such Preferred
Securities Certificate on the books
of the Trust. The attorney may
substitute another to act for him
or her.
Date:
------------------------------
Signature:
-------------------------
(Sign exactly as your
name appears on the other
side of this Preferred
Securities Certificate)
Signature:
-------------------------
(Sign exactly as your
name appears on the other
side of this Preferred
Securities Certificate)