Exhibit 4.5
[FORM OF]
AMENDED AND RESTATED
TRUST AGREEMENT
OF
CREDIT SUISSE GROUP CAPITAL (DELAWARE) TRUST I
CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC I,
AS GRANTOR
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE
DATED AS OF _________, 2002
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..................................................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application.............................................................4
Section 2.02. Lists of Holders of the Trust Preferred Securities...........................................5
Section 2.03. Reports by the Trustee.......................................................................5
Section 2.04. Periodic Reports to the Trustee..............................................................5
Section 2.05. Evidence of Compliance with Conditions Precedent.............................................5
Section 2.06. Defaults; Waiver.............................................................................6
Section 2.07. Notice of Default............................................................................6
ARTICLE III
CONTINUATION OF TRUST
Section 3.01. Continuation of Trust........................................................................7
Section 3.02. Trust Account................................................................................7
Section 3.03. Title to Trust Property......................................................................8
Section 3.04. Situs of Trust...............................................................................8
Section 3.05. Business of the Trust........................................................................8
Section 3.06. Liability of Holders of the Trust Preferred Securities.......................................8
ARTICLE IV
FORM OF TRUST PREFERRED SECURITIES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF TRUST PREFERRED SECURITIES
Section 4.01. Form and Transferability of Trust Preferred Securities.......................................8
Section 4.02. Issuance of Trust Preferred Securities.......................................................9
Section 4.03. Registration, Transfer and Exchange of Trust Preferred Securities...........................10
Section 4.04. Lost or Stolen Trust Preferred Securities, Etc..............................................12
Section 4.05. Cancellation and Destruction of Surrendered Certificates....................................13
Section 4.06. Surrender of Trust Preferred Securities and Withdrawal of Company Preferred Securities......13
Section 4.07. Redeposit of Company Preferred Securities...................................................14
Section 4.08. Filing Proofs, Certificates and Other Information...........................................14
ARTICLE V
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF TRUST PREFERRED
SECURITIES
Section 5.01. Periodic Distributions......................................................................15
Section 5.02. Redemptions of Company Preferred Securities.................................................15
Section 5.03. Distributions in Liquidation of Grantor.....................................................16
Section 5.04. Fixing of Record Date for Holders of the Trust Preferred Securities.........................16
Section 5.05. Payment of Distributions....................................................................17
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Section 5.06. Voting Rights...............................................................................17
Section 5.07. Currency....................................................................................18
ARTICLE VI
THE TRUSTEE
Section 6.01. Eligibility.................................................................................18
Section 6.02. Obligations of the Trustee..................................................................19
Section 6.03. Resignation and Removal of the Trustee; Appointment of Successor Trustee....................22
Section 6.04. Notices.....................................................................................23
Section 6.05. Status of Trust.............................................................................23
Section 6.06. [Reserved]..................................................................................23
Section 6.07. Indemnification by the Grantor..............................................................23
Section 6.08. Fees, Charges and Expenses..................................................................23
Section 6.09. Appointment of Co-Trustee or Separate Trustee...............................................23
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.01. Supplemental
Trust Agreement................................................................25
Section 7.02. Termination.................................................................................25
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Counterparts................................................................................26
Section 8.02. Exclusive Benefits of Parties...............................................................26
Section 8.03. Invalidity of Provisions....................................................................26
Section 8.04. Notices.....................................................................................27
Section 8.05. Holders of the Trust Preferred Securities Are Parties.......................................28
Section 8.06. Governing Law...............................................................................28
Section 8.07. Headings....................................................................................28
Section 8.08. Trust Preferred Securities Non-Assessable and Fully Paid....................................28
Section 8.09. No Preemptive Rights........................................................................28
Section 8.10. Survival....................................................................................28
EXHIBIT A Form of Trust Preferred Securities
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CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Amended and Restated Trust Agreement
310(a)...........................................................................................6.01, 6.09(b)(i)
310(b)......................................................................................................6.01
310(c)..............................................................................................Inapplicable
311(a)....................................................................................................2.02(a)
311(b)....................................................................................................2.02(b)
311(c)..............................................................................................Inapplicable
312(a)....................................................................................................2.02(a)
312(b)....................................................................................................2.02(b)
313.........................................................................................................2.03
314(a)......................................................................................................2.04
314(b)..............................................................................................Inapplicable
314(c)......................................................................................................2.05
314(d)..............................................................................................Inapplicable
314(f)..............................................................................................Inapplicable
315(a)......................................................................................................6.02
315(b)......................................................................................................2.07
315(c)......................................................................................................6.02
315(d)......................................................................................................6.02
316(a)................................................................................................2.06, 5.06
316(c)......................................................................................................5.04
----------
(1) This Cross-Reference Table does not constitute part of the Agreement and
shall not affect the interpretation of any of its terms or provisions.
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[FORM OF]
AMENDED AND RESTATED
TRUST AGREEMENT
OF
CREDIT SUISSE GROUP CAPITAL (
DELAWARE) TRUST I
This AMENDED AND RESTATED
TRUST AGREEMENT, dated as of ________, 2002, is
between
CREDIT SUISSE GROUP CAPITAL (
DELAWARE) LLC I, a
Delaware limited
liability company, as grantor (the "GRANTOR"), and Chase Manhattan Bank USA,
National Association, a national banking association, as trustee (the
"TRUSTEE").
WITNESSETH
WHEREAS, the Trustee and the Grantor established
Credit Suisse Group
Capital (
Delaware) Trust I (the "TRUST") under the
Delaware Statutory Trust Act
(12 Del. C. Section 3801, et seq.) (as amended from time to time, the "STATUTORY
TRUST ACT"), pursuant to a
Trust Agreement, dated as of October 4, 2002 (the
"ORIGINAL
TRUST AGREEMENT"), and a Certificate of Trust for the Trust was filed
with the Secretary of State of the State of
Delaware on October 4, 2002; and
WHEREAS, the Trustee and the Grantor hereby desire to continue the Trust
and to amend and restate in its entirety the Original
Trust Agreement; and
WHEREAS, the Trust proposes to issue $________ aggregate liquidation amount
of [INSERT TITLE OF TRUST PREFERRED SECURITIES] (the "TRUST PREFERRED
SECURITIES") representing a corresponding amount of [INSERT TITLE OF COMPANY
PREFERRED SECURITIES] (the "COMPANY PREFERRED SECURITIES") guaranteed on a
subordinated basis by
Credit Suisse Group (the "GROUP").
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, it is agreed among the parties hereto to
amend and restate in its entirety the Original
Trust Agreement as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. The following definitions shall apply to
the respective terms (in the singular and plural forms of such terms) used in
this
Trust Agreement and the Trust Preferred Securities:
"AFFILIATE" of any specified Person means any other Person controlling
or controlled by or under 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.
"BUSINESS DAY" means any day that is not a Saturday or Sunday and that
is not a day on which banking institutions are generally authorized or
obligated by law,
regulation or executive order to close in the City of New York or Newark,
Delaware [IF THE TRUST PREFERRED SECURITIES WILL BE LISTED ON THE
LUXEMBOURG STOCK EXCHANGE INSERT: or Luxembourg].
"CLEARING AGENCY" has the meaning set forth in Section 4.06.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of interest in
securities deposited with the Clearing Agency.
"CLEARSTREAM" means Clearstream, Luxembourg societe anonyme.
"COMPANY PREFERRED SECURITIES" has the meaning specified in the
recitals to this Trust Agreement.
"COMPANY PREFERRED SECURITIES CERTIFICATE" means the Company Preferred
Security certificates evidencing Company Preferred Securities held by the
Trustee [IF THE COMPANY PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE
TRUST INSERT: (unless withdrawn under Section 4.06)] from time to time
under this Trust Agreement for the benefit of Holders of the Trust
Preferred Securities.
"CORPORATE OFFICE" means the principal corporate office of the Trustee
at which at any particular time its business in respect of matters governed
by this Trust Agreement shall be administered, which at the date of this
Trust Agreement is located at Chase Manhattan Bank USA, National
Association, ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road, Building ▇
(▇▇▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile:_______.
"CORRESPONDING AMOUNT" means (i) for each $[INSERT MINIMUM
DENOMINATION OF TRUST PREFERRED SECURITIES] liquidation amount of Trust
Preferred Securities, $[INSERT MINIMUM DENOMINATION OF COMPANY PREFERRED
SECURITIES] liquidation preference of Company Preferred Securities and (ii)
for each $[INSERT MINIMUM DENOMINATION OF COMPANY PREFERRED SECURITIES]
liquidation preference of Company Preferred Securities, $[INSERT MINIMUM
DENOMINATION OF TRUST PREFERRED SECURITIES] liquidation amount of Trust
Preferred Securities.
"DEFINITIVE TRUST PREFERRED SECURITIES CERTIFICATE" means any
definitive permanent registered Trust Preferred Securities issued in
exchange for all or a part of the Global Certificate and no longer held by
DTC.
"DISTRIBUTION DATE" means a date that is a Dividend Payment Date as
specified in the LLC Agreement.
"DIVIDEND" has the meaning specified in the LLC Agreement for
"dividend."
"DTC" means The Depository Trust Company.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System (or its successor).
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"GLOBAL CERTIFICATE" means the single global Trust Preferred
Securities Certificate held by DTC representing the Trust Preferred
Securities issued by the Trust.
"GRANTOR" has the meaning specified in the preamble to this Trust
Agreement.
"GROUP" has the meaning specified in the preamble to this Trust
Agreement.
"HOLDER" means the Person in whose name a Trust Preferred Security is
registered on the Register maintained by the Registrar for such purposes.
"ISSUE DATE" means the date on which the Trust Preferred Securities
and the Company Preferred Securities are initially issued.
"LIQUIDATION PREFERENCE" has the meaning specified in the LLC
Agreement.
"LIST OF HOLDERS" has the meaning specified in Section 2.02(a).
"LLC AGREEMENT" means the Amended and Restated Limited Liability
Company Agreement of the Grantor, dated as of ________, 2002, and as from
time to time amended, modified or supplemented.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Grantor by any two of its officers and delivered to the Trustee.
"OPINION OF COUNSEL" means the written opinion of counsel, who may be
counsel to the Grantor, and who shall be reasonably acceptable to the
Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the recitals
to this Trust Agreement.
"OWNER" has the meaning specified in Section 4.06.
"PAYING AGENT" means the Person or Persons from time to time appointed
and acting as Paying Agent as provided in Section 5.05 and shall initially
be JPMorgan Chase Bank [IF THE TRUST PREFERRED SECURITIES WILL BE LISTED ON
THE LUXEMBOURG STOCK EXCHANGE INSERT: and in Luxembourg shall initially be
______].
"PERSON" means any individual, general partnership, corporation,
limited partnership, limited liability company, joint venture, trust,
statutory trust, cooperative or association and the heirs, executors,
administrators, legal representatives, successors and assigns of such
Person where the context so admits.
"REDEMPTION DATE" has the meaning specified in Section 5.02.
"REGISTER" has the meaning specified in Section 4.03.
"REGISTRAR" means any bank or trust company appointed to register
Trust Preferred Securities and transfers thereof as herein provided, and
shall initially be JPMorgan Chase Bank.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STATUTORY TRUST ACT" has the meaning specified in the recitals to
this Trust Agreement.
"SUBORDINATED GUARANTEE" means the Group's guarantee, on a
subordinated basis, of the Company Preferred Securities, pursuant to the
Credit Suisse Group Subordinated Guarantee Agreement, dated as of ________,
2002, and as from time to time amended, modified or supplemented.
"TRANSFER AGENT" means the Person or Persons from time to time
appointed and acting as Transfer Agent as provided in Section 4.03(c) and
shall initially be JPMorgan Chase Bank [IF THE TRUST PREFERRED SECURITIES
WILL BE LISTED ON THE LUXEMBOURG STOCK EXCHANGE INSERT: and in Luxembourg
shall initially be ________].
"TRUST" has the meaning specified in the recitals to this Trust
Agreement.
"TRUST AGREEMENT" means this Trust Agreement, as the same may be
amended, modified or supplemented from time to time.
"TRUST ESTATE" means all right, title and interest of the Trust in and
to the Company Preferred Securities and the related rights of the Trust
under the Subordinated Guarantee from time to time held by the Trustee
hereunder, and all distributions and payments with respect thereto. "TRUST
ESTATE" shall not include any amounts paid or payable to the Group pursuant
to this Trust Agreement, including, without limitation, fees, expenses and
indemnities.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
"TRUST PREFERRED SECURITIES" has the meaning specified in the recitals
to this Trust Agreement.
"TRUST PREFERRED SECURITIES CERTIFICATE" means a Trust Preferred
Security certificate, issued hereunder evidencing Trust Preferred
Securities representing a corresponding amount of the Company Preferred
Securities and related rights under the Subordinated Guarantee.
"TRUSTEE" has the meaning specified in the preamble to this Trust
Agreement.
"U.S. DOLLARS," "DOLLARS", "U.S.$" and "$" mean the currency of the
United States of America.
ARTICLE II
TRUST INDENTURE ACT
Section 2.01. TRUST INDENTURE ACT; APPLICATION. (a) This Trust
Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions. A term defined in the Trust
4
Indenture Act has the same meaning when used in this Trust Agreement, unless
otherwise defined in this Trust Agreement or unless the context otherwise
requires.
(b) If and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(c) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Preferred Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 2.02. LISTS OF HOLDERS OF THE TRUST PREFERRED SECURITIES.
(a) If the Trust Preferred Securities are not held in the form of a Global
Certificate registered in the name of DTC or its nominee, the Grantor shall
provide the Trustee a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of the Trust Preferred Securities
(each such list, a "LIST OF HOLDERS") (i) within 14 days after each record date
for payment of Dividends, as of such record date and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Trustee for
such List of Holders, as of a date no more than 14 days before such List of
Holders is given to the Trustee. The Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in the List of
Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity); PROVIDED that the Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under Sections 311(a),
311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. REPORTS BY THE TRUSTEE. Within 60 days after May 1 of
each year, the Trustee shall provide to the Holders of the Trust Preferred
Securities such reports as are required by Section 313(a) of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trustee shall also comply with the other requirements of
Section 313 of the Trust Indenture Act.
Section 2.04. PERIODIC REPORTS TO THE TRUSTEE. The Grantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form and manner and at
the times required by Section 314 of the Trust Indenture Act, such compliance
certificate to be provided by the Grantor within ___ days after the end of each
fiscal year of the Grantor, commencing with the fiscal year ending ___________,
200__. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Trust's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates furnished by the
Grantor).
Section 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Grantor shall provide to the Trustee evidence of compliance with the conditions
precedent, if any, provided for
5
in this Trust Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
Section 2.06. DEFAULTS; WAIVER. (a) If this Trust Agreement, as
amended or restated, shall provide for any defaults with respect to the Trust
Preferred Securities, the Holders of a majority in liquidation amount of the
Trust Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, waive any past default in respect of the Trust
Preferred Securities and its consequences; PROVIDED that, if the default is also
a default in respect of the Company Preferred Securities and:
(i) is not waivable under the LLC Agreement, the default under this
Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the holders of more than
66 2/3% of the aggregate liquidation preference of the Company Preferred
Securities to be waived under the LLC Agreement (a "SUPER MAJORITY"), the
default under this Trust Agreement may only be waived by the vote of the
Holders of at least the relevant Super Majority in liquidation amount of
the Trust Preferred Securities.
The foregoing provisions of this Section 2.06(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Trust Preferred Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such default shall cease to exist, and any default with
respect to the Trust Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other default with respect to the Trust
Preferred Securities or impair any right consequent thereon.
(b) A waiver of any default provided for under the LLC Agreement by the
Trustee at the direction of the Holders of the Trust Preferred Securities
constitutes a waiver of the corresponding default, if any, under this Trust
Agreement. The foregoing provisions of this Section 2.06(b) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Trust Preferred Securities, as permitted by the Trust Indenture Act.
Section 2.07. NOTICE OF DEFAULT. If this Trust Agreement, as amended
or restated, shall provide for any defaults with respect to the Trust Preferred
Securities, the Trustee shall, within 90 days after the occurrence of a default
with respect to the Trust Preferred Securities, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all defaults with respect to the Trust Preferred Securities actually known to an
officer of the Trustee responsible for the administration of this Trust
Agreement, unless such defaults shall have been cured before the giving of such
notice; PROVIDED that, the Trustee shall be protected in withholding such notice
if and so long as the Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Preferred
Securities.
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The Trustee shall not be deemed to have knowledge of any default with
respect to the Trust Preferred Securities unless an officer of the Trustee in
its Corporate Office shall have received written notice thereof from the Grantor
or a Holder of any Trust Preferred Securities, or an officer of the Trustee
charged with the administration of this Trust Agreement shall have obtained
actual knowledge of such default.
ARTICLE III
CONTINUATION OF TRUST
Section 3.01. CONTINUATION OF TRUST. (a) The Trust continued hereby
shall be known as "
Credit Suisse Group Capital (
Delaware) Trust I," in which
name the Trust, and the Trustee on behalf of the Trust, may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments and ▇▇▇ and be sued. It is the intention of the parties that the
Trust continued hereby constitute a statutory trust under the Statutory Trust
Act and that this Trust Agreement constitute the governing instrument of the
Trust. The Trust exists for the sole purpose of issuing Trust Preferred
Securities representing an undivided beneficial interest in the Company
Preferred Securities held by the Trust and related rights under the Subordinated
Guarantee and performing functions directly related thereto. The Grantor hereby
delivers to the Trustee for deposit in the Trust one or more Company Preferred
Securities Certificates representing Company Preferred Securities with an
aggregate Liquidation Preference of $________ for the benefit of the Holders of
the Trust Preferred Securities. To the fullest extent permitted by law, without
the need for any other action of any Person, including the Trustee or any other
Holder, each Holder shall be entitled to enforce, in the name of the Trust, the
rights of the Trust under the Company Preferred Securities and the related
rights under the Subordinated Guarantee represented by the Trust Preferred
Securities held by such Holder. Any recovery on such an enforcement action shall
belong solely to such Holder who brought the action, not to the Trust, the
Trustee or any other Holder individually or to the Holders as a group. The
Trustee shall have the power and authority (subject to the Trustee's rights,
privileges and protections in Section 6.02 and elsewhere herein) to enforce any
of the Trust's rights in respect of the Company Preferred Securities which are
not enforced by any Holder. Subject to Section 7.02, the Trust shall be
irrevocable.
(b) The Trustee hereby acknowledges receipt of one or more Company
Preferred Securities Certificates representing Company Preferred Securities
having an aggregate Liquidation Preference of $________ registered in the name
of the Trust, and its acceptance on behalf of the Trust of the Company Preferred
Securities, and declares that the Trust shall hold the Company Preferred
Securities for the benefit of the Holders of the Trust Preferred Securities.
Section 3.02. TRUST ACCOUNT. The Trustee shall open an account with a
banking institution authorized to exercise corporate trust powers and having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by a federal or state banking authority. Such account shall be
entitled "
Credit Suisse Group Capital (Delaware) Trust I--Trust Account." All
distributions received by the Trustee on behalf of the Trust in respect of the
Company Preferred Securities shall be deposited in such account by the Trustee
until distributed as provided in Article V.
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Section 3.03. TITLE TO TRUST PROPERTY. Legal title to the Trust
Estate shall be vested at all times in the Trustee on behalf of the Trust.
Section 3.04. SITUS OF TRUST. The situs of the Trust shall be in
Newark, Delaware. The account described in Section 3.02 shall be maintained with
a bank in the State of Delaware. The Trustee shall cause the books and records
of the Trust to be maintained at the Corporate Office. The Trust Estate shall be
held in the State of Delaware. Notwithstanding the foregoing, the Trustee may
transfer such of the books and records, assets (including without limitation,
the Company Preferred Securities) and accounts of the Trust to a co-trustee
appointed pursuant to Section 6.09 or to such agents as it may appoint in
accordance with Section 6.02 (in either case, whether located within or outside
the State of Delaware), as shall be reasonably necessary (and for so long as may
be reasonably necessary) to enable such co-trustee or agents to perform the
duties and obligations for which such co-trustee or agents may be so employed.
Section 3.05. BUSINESS OF THE TRUST. The Trust has been formed for
the purpose of: (i) issuing the Trust Preferred Securities, (ii) investing the
proceeds of the Trust Preferred Securities in the Company Preferred Securities,
which benefit from the related Subordinated Guarantee and (iii) engaging in any
related or incidental activities. The Trust shall have the power and authority
to execute, deliver and perform its obligations under the LLC Agreement and
other agreements to which the Trust is a party and to become a member of the
Grantor.
The only assets of the Trust shall be the Trust Estate. The Trust may not
acquire any other assets, issue any other equity securities or any debt
securities, or engage in any other activities.
Section 3.06. LIABILITY OF HOLDERS OF THE TRUST PREFERRED SECURITIES.
With respect to the Trust, Holders of the Trust Preferred Securities shall be
entitled to the same limitation of personal liability to which stockholders of
private corporations for profit organized under the General Corporation Law of
the State of Delaware are extended.
ARTICLE IV
FORM OF TRUST PREFERRED SECURITIES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF TRUST PREFERRED SECURITIES
Section 4.01. FORM AND TRANSFERABILITY OF TRUST PREFERRED SECURITIES.
(a) Except as otherwise required by DTC, the Trust Preferred Securities shall be
in substantially the form set forth in Exhibit A, with the appropriate
insertions, modifications and omissions, as hereinafter provided or as shall be
agreed between the Grantor and the Trustee.
(b) The Trust Preferred Securities shall be issued in denominations of
$[INSERT MINIMUM DENOMINATION OF TRUST PREFERRED SECURITIES] liquidation amount
and whole-number multiples of $[INSERT MINIMUM DENOMINATION OF TRUST PREFERRED
SECURITIES]. All Trust Preferred Securities shall be dated the date of their
execution or countersignature.
(c) Trust Preferred Securities may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Trust Agreement as may be required by the Trustee or the
Grantor or any applicable law or regulation
8
or the rules and regulations of any securities exchange upon which the Trust
Preferred Securities may be listed or to conform with any usage with respect
thereto.
(d) Title to any Trust Preferred Security that is properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; PROVIDED, HOWEVER, that until the transfer shall be registered on
the Register as provided in Section 4.03, the Trust, the Trustee, the Registrar
and the Grantor may, notwithstanding any notice to the contrary, treat the
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the Person entitled to distributions (subject to Section 5.04) or to
any notice provided for in this Trust Agreement and for all other purposes.
(e) Trust Preferred Securities shall be executed by the Trustee by the
manual signature of a duly authorized officer of the Trustee; PROVIDED, HOWEVER,
that such signature may be a facsimile if a Registrar (other than the Trustee)
shall have countersigned the Trust Preferred Security by manual signature of a
duly authorized officer of the Registrar. No Trust Preferred Security shall be
entitled to any benefit under this Trust Agreement or be valid or obligatory for
any purpose unless it shall have been executed as provided in the preceding
sentence. The Registrar shall record on the Register each Trust Preferred
Security executed as provided above and delivered as hereinafter provided. Trust
Preferred Securities bearing the signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trustee shall be validly issued notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the delivery of such
Trust Preferred Securities or did not hold such offices at the date of delivery
of such Trust Preferred Securities.
Section 4.02. ISSUANCE OF TRUST PREFERRED SECURITIES. (a) The Trustee
having received on behalf of the Trust one or more Company Preferred Securities
Certificates representing Company Preferred Securities with an aggregate
liquidation preference of $________ and having acknowledged such receipt in
Section 3.01(b), subject to the terms and conditions of this Trust Agreement,
the Trustee, on behalf of the Trust, shall execute and deposit a single Global
Certificate with DTC or its nominee or the custodian therefor, DTC or its
nominee thereupon becoming the initial Holder of the Trust Preferred Securities.
(b) Beneficial interests in the Trust Preferred Securities represented by
a Global Certificate will be evidenced by, and transfers thereof will be
effected only through, records maintained by the Clearing Agency Participants.
Unless and until Definitive Trust Preferred Securities Certificates have been
issued to the Owners pursuant to Section 4.03(c):
(i) the provisions of this Section 4.02(b) shall be in full force
and effect;
(ii) the Trust and the Trustee shall be entitled to deal with the
Clearing Agency for all purposes of this Trust Agreement (including the
payment of Dividends on the Global Certificate and receiving approvals,
votes or consents hereunder) as the Holder of the Trust Preferred
Securities and the sole Holder of the Global Certificate, and shall have no
obligation to the Owners;
9
(iii) to the extent that the provisions of this Section 4.02(b)
conflict with any other provisions of this Trust Agreement, the provisions
of this Section 4.02(b) shall control; and
(iv) the rights of the Owners shall be exercised only through the
Clearing Agencies and shall be limited to those established by law and
agreements between such Owners and the relevant Clearing Agency and/or the
Clearing Agency Participants, and the Clearing Agency shall receive and
transmit payments of Dividends on the Global Certificate to such Clearing
Agency Participants. The Clearing Agency will make book-entry transfers
among the Clearing Agency Participants; PROVIDED, that solely for the
purposes of determining whether the Holders of the requisite amount of
Trust Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Trust Preferred Securities
Certificates have not been issued to the Owners pursuant to Section
4.03(c), the Trustee may conclusively rely on, and shall be fully protected
in relying on, any written instrument (including a proxy) delivered to the
Trustee by any Clearing Agency setting forth the Owners' votes or assigning
the right to vote on any matter to any other Persons either in whole or in
part.
(c) Notices to Clearing Agency. Whenever a notice or other communication
to the Holders is required under this Trust Agreement, unless and until
Definitive Trust Preferred Securities Certificates shall have been issued to the
Owners pursuant to Section 4.03(c), the Trustee shall give all such notices and
communications specified herein to be given to the Holders to the Clearing
Agency, and shall have no notice obligations to the Owners [IF THE TRUST
PREFERRED SECURITIES WILL BE LISTED ON THE LUXEMBOURG STOCK EXCHANGE INSERT:
except that for as long as the Trust Preferred Securities are listed on the
Luxembourg Stock Exchange, all notices regarding the Trust Preferred Securities
shall be published in English in one leading daily newspaper with circulation in
Luxembourg (which is expected to be the LUXEMBURGER WORT) as long as such
publication is required under the rules of the Luxembourg Stock Exchange].
(d) Appointment of Successor Clearing Agency. If any Clearing Agency
elects to discontinue its services as securities depositary with respect to the
Trust Preferred Securities, the Grantor and the Trust shall use their best
efforts to appoint a successor Clearing Agency with respect to the Trust
Preferred Securities.
(e) None of the Grantor, the Trust or the Trustee nor any agent of the
Grantor, the Trust or the Trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Certificate or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 4.03. REGISTRATION, TRANSFER AND EXCHANGE OF TRUST PREFERRED
SECURITIES. (a) The Trustee shall cause a Register (the "REGISTER") to be kept
at the office of the Registrar in which, subject to such reasonable regulations
as the Trustee and the Registrar may prescribe, the Trustee shall provide for
the registration of Trust Preferred Securities and of transfers and exchanges of
Trust Preferred Securities as herein provided. In the absence of appointing a
third party, the Trustee shall serve as the Registrar. JPMorgan Chase Bank at
its corporate trust office in New York, New York is hereby appointed the initial
Registrar. The Grantor may remove the Registrar and, upon removal or resignation
of the Registrar, appoint a successor Registrar.
10
Subject to the terms and conditions of this Trust Agreement, the Registrar shall
register the transfers on the Register from time to time of Trust Preferred
Securities upon any surrender thereof by the Holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender, the Trustee
shall execute and, if applicable, the Registrar shall countersign, a new Trust
Preferred Security representing the same corresponding amount of Company
Preferred Securities in accordance with Section 4.01(e) and deliver the same to
or upon the order of the Person entitled thereto.
(b) At the option of a Holder, Trust Preferred Securities may be exchanged
for other Trust Preferred Securities representing the same corresponding amount
of Company Preferred Securities. Upon surrender of a Trust Preferred Security at
the office of the Registrar or such other office as the Trustee may designate
for the purpose of effecting an exchange of Trust Preferred Securities, subject
to the conditions to transfer set forth in this Trust Agreement, the Trustee
shall execute and, if applicable, the Registrar shall countersign, and deliver a
new Trust Preferred Security representing the same corresponding amount of
Company Preferred Securities as the Trust Preferred Security surrendered.
As a condition precedent to the registration of the transfer or exchange of
any Trust Preferred Security, the Registrar may require (i) production of proof
satisfactory to it as to the identity and genuineness of any signature; (ii)
compliance with such regulations, if any, as the Trustee or the Registrar may
establish not inconsistent with the provisions of this Trust Agreement; and
(iii) such other information as the Registrar may reasonably request.
No Holder may require the transfer of any Trust Preferred Security to be
registered during the period of fifteen days ending on the due date for any
payment of the liquidation amount on the Trust Preferred Securities. The Trust
shall not be required to register, or cause others to register, the transfer of
Trust Preferred Securities after such Trust Preferred Securities have been
called for redemption.
Registration of transfers of Trust Preferred Securities, including Trust
Preferred Securities Certificates, shall be made without change by the Trust,
but the transferor must pay any tax or governmental charge that may be imposed
in relation to the transfer, together with any indemnity that the Trust or the
Group or the Transfer Agent may require.
(c) The Global Certificate is exchangeable for Definitive Trust Preferred
Securities Certificates in registered form if DTC: (i) notifies the Grantor that
it is unwilling or unable to continue as depositary for the Global Certificate
and the Grantor does not appoint a successor depositary or (ii) has ceased to be
a clearing agency registered under the Securities Exchange Act of 1934. Upon
surrender of the Global Certificates by the Clearing Agency, accompanied by
registration instructions, the Grantor will cause to be prepared for delivery to
the Owners the Definitive Trust Preferred Securities Certificates in accordance
with instructions of the Clearing Agency.
Definitive Trust Preferred Securities Certificates may be transferred in
any whole-number multiples of $[INSERT MINIMUM DENOMINATION OF TRUST PREFERRED
SECURITIES] by surrendering the
11
Definitive Trust Preferred Securities Certificates, together with the form of
transfer endorsed on it, duly completed and executed, at the specified office of
the Transfer Agent. The initial Transfer Agent shall be JPMorgan Chase Bank at
its corporate trust office in New York, New York. [IF THE TRUST PREFERRED
SECURITIES WILL BE LISTED ON THE LUXEMBOURG STOCK EXCHANGE INSERT: As long as
the Trust Preferred Securities are listed on the Luxembourg Stock Exchange, the
Trust shall also maintain, at the expense of the Grantor, a Transfer Agent in
Luxembourg. The initial Luxembourg Transfer Agent shall be ________.] If only
part of a Definitive Trust Preferred Securities Certificate is transferred, a
new Definitive Trust Preferred Securities Certificate representing the
securities not transferred shall be issued to the transferor within three
Business Days after the Transfer Agent receives the certificate. The new
Definitive Trust Preferred Securities Certificate representing the Trust
Preferred Securities that were not transferred shall be delivered to the
transferor by uninsured mail at the risk of the transferor, to the address of
the transferor that appears in the Register. The new Definitive Trust Preferred
Securities Certificate representing the Trust Preferred Securities that were
transferred shall be sent to the transferee within three Business Days after the
Trustee receives the surrendered Definitive Trust Preferred Securities
Certificate by uninsured mail at the risk of the Holder entitled to the
Definitive Trust Preferred Securities Certificate, to the address specified on
the form of transfer.
All transfers of Definitive Trust Preferred Securities Certificates and
entries shall be made as provided in any registrar and transfer agency
agreement, among the Trust and the Registrar and Transfer Agents, relating to
the Trust Preferred Securities.
(d) No Trust Preferred Securities may be sold or otherwise transferred
unless the purchaser or transferee of such Trust Preferred Securities
represents, or is deemed to represent, that on each day from the date of
acquisition through and including the date of disposition either (i) it is not
an employee benefit plan or other plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, a governmental or other plan subject
to substantially similar federal, state or local law ("SIMILAR LAW"), an entity
whose underlying assets include "plan assets" by reason of any such plan's
investment in the entity or otherwise (each, a "PLAN") or acting on behalf of or
investing the assets of any such Plan or (ii) it is eligible for the exemptive
relief available under Prohibited Transaction Class Exemption 96-23, 95-60,
91-38, 90-1 or 84-14 (or similar exemption from Similar Law) with respect to the
acquisition, holding and disposition of the Trust Preferred Securities. In
connection with any transfer of beneficial interests in the Global Certificate,
neither the Trustee nor the Registrar shall have any responsibility for
determining or monitoring compliance with the provisions of the foregoing
sentence; and in connection with any transfer of a Definitive Trust Preferred
Securities Certificate, unless the Grantor shall have required that any
transferee execute an appropriate certification as to compliance with the
provisions of said sentence as a condition to any such transfer, the form of
which certification shall have been delivered to the Trustee and the Registrar,
the Trustee and the Registrar shall be entitled to assume, in connection with
any such transfer, that the transferee has complied with the provisions of said
sentence.
Section 4.04. LOST OR STOLEN TRUST PREFERRED SECURITIES, ETC. If
(i) any mutilated Trust Preferred Security Certificate shall be surrendered to
the Registrar, or if the Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Preferred Security
12
Certificate, and (ii) there shall be delivered to the Registrar and the Grantor
such security or indemnity as may be required by them to hold each of them
harmless, then in the absence of notice that such Trust Preferred Security
Certificate shall have been acquired by a bona fide purchaser or, as applicable,
any protected purchaser, the Grantor shall make available for delivery, in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Trust
Preferred Security Certificate, a new Trust Preferred Security Certificate
representing the same amount of corresponding Company Preferred Securities. In
connection with the issuance of any new Trust Preferred Security Certificate,
the Grantor 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 Preferred Security Certificate issued pursuant to this Section
shall constitute conclusive evidence of a Trust Preferred Security Certificate
corresponding to that evidenced by the lost, stolen or destroyed Trust Preferred
Security Certificate, as if originally issued, whether or not the lost, stolen
or destroyed Trust Preferred Security Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Trust Preferred Securities
Certificates.
Section 4.05. CANCELLATION AND DESTRUCTION OF SURRENDERED
CERTIFICATES. All Trust Preferred Securities Certificates surrendered to the
Trustee shall be canceled by the Trustee. Except as prohibited by applicable law
or regulation, the Trustee may destroy such canceled Trust Preferred Securities
Certificates or otherwise dispose of them in accordance with its usual
practices.
[IF THE COMPANY PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE TRUST
INSERT:
Section 4.06. SURRENDER OF TRUST PREFERRED SECURITIES AND WITHDRAWAL
OF COMPANY PREFERRED SECURITIES. Any Person who is the beneficial owner (an
"OWNER") of the Trust Preferred Securities represented by the Global
Certificates held by DTC or a successor clearing agency (the "CLEARING AGENCY")
or, if a participant in the Clearing Agency is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly), in accordance with the rules of such Clearing Agency,
may withdraw all, but not less than all, of the Company Preferred Securities
represented by such Trust Preferred Securities by providing a written notice to
the Trustee, with evidence of beneficial ownership in form satisfactory to the
Trustee, and providing to the Grantor such documents or information as the
Grantor may request for tax reporting purposes, at the Corporate Office or at
such other office as the Trustee may designate for such withdrawals, all in form
satisfactory to the Trustee, in its sole discretion. The Owner's notice shall
also be deemed to be such Owner's agreement to be subject to the terms of the
LLC Agreement applicable to the rights of holders of the Company Preferred
Securities.
Within a reasonable period after such a request has been properly made, the
Trustee shall instruct DTC to reduce the Trust Preferred Securities represented
by the Global Certificate by the corresponding amount of the Company Preferred
Securities to be so withdrawn by the withdrawing Owner. The Grantor shall issue
to the withdrawing Owner a Company Preferred Securities Certificate representing
the amount of the Company Preferred Securities so withdrawn. The Trustee shall
not be responsible for any failure by the Grantor to issue or any
13
delay by the Grantor in issuing any Company Preferred Securities Certificate
pursuant to this Section.
Any Owner who wishes to withdraw the Company Preferred Securities in
accordance with this Section 4.06 shall be required to provide the Grantor with
a completed Internal Revenue Service Form W-9 or W-8, as appropriate, and/or
such other documents or information as are requested by the Grantor for tax
reporting purposes and thereafter shall be admitted to the Grantor as a member
of the Grantor upon such Owner's receipt of a Company Preferred Securities
Certificate registered in such Owner's name.
The Trustee shall deliver the appropriate number of Company Preferred
Securities Certificates in exchange for the Trust Preferred Securities
surrendered in accordance with this Section 4.06 to the Owner at the Corporate
Office or at such other office as the Trustee may designate for such deliveries,
except that, at the request, risk and expense of the Owner and for the account
of the Owner, such delivery may be made at such other place as may be designated
by such Owner. The Trustee shall only deliver such Company Preferred Securities
Certificates upon payment by such Owner to the Trustee of all taxes and other
governmental charges and any fees (including the fees and expenses of the
Trustee and its counsel) payable in connection with such delivery and the
transfer of such Company Preferred Securities Certificates.
Notwithstanding anything in this Section 4.06 to the contrary, if the
Company Preferred Securities exchangeable for Trust Preferred Securities have
been called for redemption in accordance with the LLC Agreement, no Owner of
such Trust Preferred Securities may withdraw any or all of the Company Preferred
Securities represented by such Trust Preferred Securities.]
[IF THE COMPANY PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE TRUST
INSERT:
Section 4.07. REDEPOSIT OF COMPANY PREFERRED SECURITIES. Any Holder
of Company Preferred Securities may redeposit withdrawn Company Preferred
Securities by delivering to the Trustee or its designee the Company Preferred
Securities Certificate for the Company Preferred Securities to be deposited,
which are (i) if required by the Trustee, properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement in form satisfactory to
the Trustee and, as determined by the Grantor, in compliance with the terms of
the LLC Agreement and (ii) accompanied by all such certifications as may be
required by the Trustee in its sole discretion and in accordance with the
provisions of this Trust Agreement. Within a reasonable period after such
deposit is properly made, the Trustee shall instruct DTC to increase the amount
of Trust Preferred Securities represented by the Global Certificate held by DTC
by an amount equal to the Company Preferred Securities so deposited. The Trustee
shall only accept the redeposit of such Company Preferred Securities upon
payment by such Holder of the Company Preferred Securities to the Trustee of all
taxes and other governmental charges and any fees and expenses (including the
fees and expenses of the Trustee and its counsel) payable in connection with
such deposit and the transfer of the deposited Company Preferred Securities.
If required by the Trustee, Company Preferred Securities Certificates
presented for redeposit at any time shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Trustee, that shall provide
for the prompt transfer to the Trustee or its nominee of any distribution or
other right that any Person in whose name the Company Preferred Securities
Certificates are registered may thereafter receive upon or in respect of such
14
deposited Company Preferred Securities, or in lieu thereof such agreement of
indemnity or other agreement as shall be satisfactory to the Trustee.]
[IF THE COMPANY PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE TRUST
INSERT:
Section 4.08. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
Person presenting Company Preferred Securities Certificates for redeposit in
accordance with Section 4.07 may be required from time to time to file such
proof of residence or other information, to execute such certificates and to
make such representations and warranties as the Trustee or the Grantor may
reasonably deem necessary or proper.]
ARTICLE V
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF TRUST PREFERRED
SECURITIES
Section 5.01. PERIODIC DISTRIBUTIONS. Whenever (and to the extent)
the Trust receives any cash payments representing a Dividend or redemption
payment on the Company Preferred Securities, or payments from the Group pursuant
to the Subordinated Guarantee in respect of such Dividend or redemption payment,
the Trustee acting directly or through any Paying Agent shall distribute such
amounts to Holders of the Trust Preferred Securities on the record date fixed
pursuant to Section 5.04, in proportion to the respective liquidation amount of
Trust Preferred Securities held by such Holders.
Section 5.02. REDEMPTIONS OF COMPANY PREFERRED SECURITIES. The Trust
Preferred Securities shall be redeemed only upon redemption of the Company
Preferred Securities.
If the Grantor redeems the Company Preferred Securities in accordance with
the LLC Agreement, then the Grantor shall give the Trustee at least 30 days'
prior notice before doing so. The Trustee shall mail a corresponding notice of
the redemption not less than 25 days prior to the date fixed for redemption (the
"REDEMPTION DATE") of the Company Preferred Securities to the Holders of the
Trust Preferred Securities as provided under Section 8.04. No defect in the
notice of redemption or in the mailing or delivery thereof shall affect the
validity of the redemption proceedings. The Grantor shall provide the Trustee
with the form of such notice, and each such notice shall state: (i) the
Redemption Date, (ii) the redemption price at which the Trust Preferred
Securities and the Company Preferred Securities are to be redeemed, (iii) that
all outstanding Trust Preferred Securities are to be redeemed or, in the case of
a redemption of fewer than all outstanding Trust Preferred Securities in
connection with a partial redemption of the Company Preferred Securities, the
amount of such Trust Preferred Securities to be so redeemed and (iv) the place
or places where Trust Preferred Securities to be redeemed are to be surrendered
for redemption.
If only some of the outstanding Trust Preferred Securities are to be
redeemed, the Trust Preferred Securities to be redeemed shall be selected in
accordance with DTC's procedures. If the Trust Preferred Securities do not
remain registered in the name of DTC or its nominee and only some of the
outstanding Trust Preferred Securities are to be redeemed, the Trust Preferred
Securities shall be redeemed proportionally or selected for redemption by the
Trustee pursuant to the rules of any securities exchange on which the Trust
Preferred Securities are listed at that time or by such method as the Trustee
shall deem fair and appropriate. The Grantor shall promptly
15
notify the Registrar and Transfer Agent, in writing, of the Trust Preferred
Securities selected for partial redemption in accordance with the foregoing
provisions.
The Grantor agrees that if a partial redemption of the Company Preferred
Securities would result in a delisting of the Trust Preferred Securities from
any securities exchange on which the Trust Preferred Securities are then listed,
the Grantor shall only redeem the Company Preferred Securities in whole.
On the date of redemption of the Company Preferred Securities, so long as
the Grantor or the Group has deposited with JPMorgan Chase Bank, the Paying
Agent, on behalf of the Trust the aggregate amount payable upon redemption of
all the Company Preferred Securities held by the Trust to be redeemed, the
Paying Agent on behalf of the Trust shall, if the Trust Preferred Securities are
represented by Global Certificates, irrevocably deposit with DTC funds
sufficient to pay the redemption price and give DTC irrevocable instructions to
pay the redemption price to the Holders of the Trust Preferred Securities to be
redeemed.
Once the Paying Agent has received this deposit, all rights of the Holders
of the Trust Preferred Securities called for redemption shall end, except their
right to receive the redemption price, without interest; PROVIDED, HOWEVER, that
upon presentation of any Trust Preferred Securities redeemed in part only, the
Trustee shall execute and, if applicable, the Registrar shall countersign, and
make available for delivery to or on the order of the Holder thereof, at the
expense of the Trust, new Trust Preferred Securities in an amount equal to the
unredeemed portion of the Trust Preferred Securities so presented. If any date
fixed for redemption of the Trust Preferred Securities is not a Business Day,
then the redemption price shall instead be paid on the next Business Day, except
that if that Business Day falls in the next calendar year, the redemption price
shall be paid on the preceding Business Day. No interest or other payment shall
be due as a result of any such adjustment.
Section 5.03. DISTRIBUTIONS IN LIQUIDATION OF GRANTOR. Upon receipt
by the Trust of any Liquidation Preference from the Grantor upon the liquidation
of the Grantor, after satisfaction of creditors of the Trust as required by
applicable law, the Trust shall distribute the same to the Holders of the Trust
Preferred Securities on the record date fixed pursuant to Section 5.04, in
proportion to the respective Liquidation Preference of the Company Preferred
Securities which were exchangeable for the Trust Preferred Securities held by
such Holders.
Section 5.04. FIXING OF RECORD DATE FOR HOLDERS OF THE TRUST
PREFERRED SECURITIES. Each distribution on the Trust Preferred Securities in
respect of Dividends on the Company Preferred Securities (each a "REGULAR
DISTRIBUTION") shall be payable to the Holders as they appear on the Register on
the corresponding record date. The record date for Regular Distributions is the
fifteenth calendar day prior to the relevant Distribution Date. Whenever any
other distribution shall become payable, or whenever the Trustee shall receive
notice of any meeting at which Holders of the Company Preferred Securities are
entitled to vote or of which Holders of the Company Preferred Securities are
entitled to notice, the Trustee shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Grantor with
respect to the Company Preferred Securities, of which the Grantor shall promptly
inform the Trustee) for the determination of the Holders of the Trust Preferred
Securities who shall be
16
entitled (i) to receive such distribution, or (ii) to receive notice of, and to
give instructions for the exercise of voting rights at, any such meeting.
Section 5.05. PAYMENT OF DISTRIBUTIONS. The Trust shall maintain a
Paying Agent with respect to the Trust Preferred Securities, which shall
initially be JPMorgan Chase Bank at its corporate trust office in New York, New
York. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Trustee. If JPMorgan Chase Bank resigns as Paying
Agent, the Trustee shall appoint another bank or trust company to act as Paying
Agent. [IF THE TRUST PREFERRED SECURITIES WILL BE LISTED ON THE LUXEMBOURG STOCK
EXCHANGE INSERT: As long as the Trust Preferred Securities are listed on the
Luxembourg Stock Exchange, the Trust shall also maintain a Paying Agent in
Luxembourg. The initial Luxembourg Paying Agent shall be ________.]
As long as the Trust Preferred Securities are in book-entry form, payments
on the Trust Preferred Securities shall be made to DTC, which shall credit the
relevant accounts at DTC on the scheduled payment dates. The payments shall be
distributed to participants, indirect participants and beneficial owners of the
Trust Preferred Securities in accordance with DTC's procedures.
If Definitive Trust Preferred Securities Certificates are issued as
described in Section 4.03(c), payments on the Trust Preferred Securities shall
be made by check mailed to the address of the Holder entitled to receive the
payment, as such address appears in the Register.
Payments of the redemption price of, and, if the Trust shall liquidate or
dissolve as provided herein, distributions in liquidation on, Trust Preferred
Securities shall be made upon surrender of such Trust Preferred Securities at
the office of the Paying Agent. The Grantor shall pay Dividends on, the
redemption price of, and Liquidation Preferences on, the Company Preferred
Securities directly to the Paying Agent for distribution to the Holders of the
Trust Preferred Securities in accordance with the terms of this Trust Agreement
and the paying agency agreement as then in effect with the Paying Agent.
If any distributions on the Trust Preferred Securities would be payable on
a day that is not a Business Day, that distribution shall instead be made on the
next Business Day, except that if that Business Day falls in the next calendar
year, the distribution shall be made on the preceding Business Day. No interest
or other payment shall be due as a result of any such adjustment.
Section 5.06. VOTING RIGHTS. If at any time, the holders of Company
Preferred Securities are entitled to vote under the LLC Agreement or the
Subordinated Guarantee, the Trustee shall: (i) notify the Holders of the Trust
Preferred Securities of such right, (ii) request specific direction from each
Holder as to the vote with respect to the Company Preferred Securities
represented by such Holder's Trust Preferred Securities, and (iii) vote the
relevant Company Preferred Securities only in accordance with such specific
direction.
Upon receiving notice of any meeting at which the holders of Company
Preferred Securities are entitled to vote, the Trustee shall, as soon as
practicable, mail to the Holders of the Trust Preferred Securities a notice as
provided under Section 8.04. The Grantor shall provide the form of notice to the
Trustee to be forwarded to the Holders of the Trust Preferred Securities.
17
The notice shall contain: (i) all the information that is contained in the
notice announcing the meeting of the Company Preferred Securities, (ii) a
statement that the Holders of the Trust Preferred Securities shall be entitled,
subject to any applicable provision of law, to direct the Trustee specifically
as to the exercise of the voting rights pertaining to the number of the Company
Preferred Securities represented by their respective Trust Preferred Securities,
and (iii) a brief description of the manner in which the Holders of the Trust
Preferred Securities may give such specific directions.
If the Trustee receives a written direction from a Holder, the Trustee
shall vote, or cause to be voted, the number of Company Preferred Securities
corresponding to such Holder's Trust Preferred Securities in accordance with the
instructions set forth in the direction. If the Trustee does not receive
specific instructions from any Holder, the Trustee shall abstain from voting the
Company Preferred Securities corresponding to such Holder's Trust Preferred
Securities.
The Grantor hereby agrees to take all reasonable action that may be deemed
necessary by the Trustee in order to enable the Trustee to vote such Company
Preferred Securities or cause such Company Preferred Securities to be voted.
The Holders of a majority in liquidation amount of the outstanding Trust
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, as holder of the Company
Preferred Securities, under the Subordinated Guarantee or the LLC Agreement or
as Trustee under this Trust Agreement; PROVIDED that (i) such direction shall
not be in conflict with any rule of law or with this Trust Agreement, the LLC
Agreement or the Subordinated Guarantee, (ii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction and (iii) subject to the provisions of Section 6.02, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by an officer or officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 5.07. CURRENCY. All distributions and other payments and all
other monetary rights and obligations in respect of the Trust Preferred
Securities shall be made or performed in U.S. dollars.
ARTICLE VI
THE TRUSTEE
Section 6.01. ELIGIBILITY. The Trust shall at all times have a
Trustee that is not an Affiliate of the Grantor and is a bank that is organized
and doing business under the laws of the State of Delaware, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such bank publishes reports of conditions at
least annually, pursuant to law or to the requirements of federal or state
supervising or examining authority, then for the purposes of this Section 6.01,
the combined capital and surplus of such bank shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
18
If the Trustee ceases to be eligible in accordance with the provisions of
this Section 6.01, the Trustee shall resign immediately in the manner and with
the effect specified in Section 6.03.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Grantor (as if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof.
The Trustee shall make available for inspection by Holders of the Trust
Preferred Securities at the Corporate Office and at such other places as it may
from time to time deem advisable during normal business hours any reports and
communications received from the Grantor by the Trustee as the holder of the
Company Preferred Securities.
Promptly upon request from time to time by the Grantor, the Trustee shall
cause the Registrar to furnish to it a list as of a recent date, of the names,
addresses and holdings of all Persons in whose names Trust Preferred Securities
are registered on the Register.
Section 6.02. OBLIGATIONS OF THE TRUSTEE. (a) The Trustee, before the
occurrence of any default with respect to the Trust Preferred Securities and
after the curing or waiver of all such defaults that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement and no implied covenants shall be read into this Trust Agreement
against the Trustee. In case any default with respect to the Trust Preferred
Securities has occurred (that has not been cured or waived pursuant to Section
2.06) of which an officer of the Trustee responsible for the administration of
this Trust Agreement has actual knowledge, the Trustee shall exercise such of
the rights and powers vested in it by this Trust Agreement, and use the same
degree of care and skill in its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs. Subject to
these requirements, the Trustee shall be under no obligation to exercise any of
the powers vested in it by this Trust Agreement or conferred on the Trustee as
holder of the Company Preferred Securities and related rights under the
Subordinated Guarantee at the direction of the Holders, unless such Holders
offer the Trustee reasonable indemnity against all costs, expenses and
liabilities that might be incurred by exercising those powers.
(b) No provision of this Trust Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any default with respect to the
Trust Preferred Securities and after the curing or waiving of all such
defaults that may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Trust Agreement
and the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall be read into
this Trust Agreement against the Trustee; and
19
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Trust Agreement; PROVIDED that in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement, but need not
confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by an officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in liquidation amount
of the Trust Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Trust
Agreement, or conferred on the Trustee as holder of the Company Preferred
Securities or otherwise under the Subordinated Guarantee or the LLC
Agreement.
(iv) the Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Company Preferred Securities and
related rights under the Subordinated Guarantee shall be to deal with such
property in a similar manner as the Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Trustee under this Trust Agreement and the Trust Indenture
Act.
(v) No provision of this Trust Agreement shall require the Trustee
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.
(c) The Trustee shall cause its authorized signatories to execute and
deliver on behalf of the Trust any and all documents and certificates as in the
opinion of the Trustee may be desirable in connection with the issuance of the
Trust Preferred Securities representing the Company Preferred Securities and
related rights under the Subordinated Guarantee.
The Grantor may instruct the Trustee to dissolve the Trust and distribute
the Trust Estate on a pro rata basis to the Holders of the Trust Preferred
Securities in the case of either a Tax Event with respect to the Trust or an
Investment Company Act Event with respect to the Trust, each as such is defined
in the LLC Agreement.
In the event that the Trustee is uncertain as to application or
interpretation of any provision of this Trust Agreement or must choose between
alternative courses of action, the
20
Trustee may seek the instructions of the Grantor by written notice requesting
instructions. The Trustee shall take and be protected in taking such action as
has been directed by the Grantor; PROVIDED that, if the Trustee does not receive
instructions within ten days or such shorter time as is set forth in such
notice, the Trustee shall be under no duty to take or refrain from taking such
action and shall be fully protected in any course of action taken by it in good
faith not inconsistent with this Trust Agreement as it shall deem advisable and
in the interest of the Holders of the Trust Preferred Securities.
The Trustee and its Affiliates may own, buy, sell or deal in any class of
securities of the Grantor and its Affiliates and in Trust Preferred Securities
or become financially interested in any transaction in which the Grantor or its
Affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if it were not the Trustee hereunder. The Trustee may
also act as transfer agent or registrar of any of the securities of the Grantor
and its Affiliates or act in any other capacity for the Grantor or its
Affiliates.
The Trustee (and its officers, directors, employees and agents) makes no
representation nor shall it have any liability for or responsibility with
respect to the issuance of the Trust Preferred Securities (except for its
signatures thereon) or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein; PROVIDED, HOWEVER, that
the Trustee is responsible for its representations and warranties in the next
succeeding paragraph.
The Trustee assumes no responsibility for the correctness of the
description that appears in the Trust Preferred Securities, which can be taken
as a statement of the Grantor summarizing certain provisions of this Trust
Agreement. Notwithstanding any other provision herein or in the Trust Preferred
Securities, the Trustee makes no warranties or representations as to the
validity, genuineness or sufficiency of the Trust Preferred Securities or the
Company Preferred Securities, as to the validity or sufficiency of this Trust
Agreement, the LLC Agreement, the Company Preferred Securities or the
Subordinated Guarantee, as to the value of the Trust Preferred Securities or the
Company Preferred Securities or as to any right, title or interest of the
Holders of the Trust Preferred Securities, except that the Trustee hereby
represents and warrants as follows: (i) the Trustee has been duly organized and
is validly existing and in good standing under the laws of the United States,
with full power, authority and legal right under such laws to execute, deliver
and carry out the terms of this Trust Agreement; (ii) this Trust Agreement has
been duly authorized, executed and delivered by the Trustee; and (iii) this
Section 6.02 constitutes a valid and binding obligation of the Trustee
enforceable against the Trustee in accordance with its terms subject to
equitable principles and bankruptcy, insolvency, moratorium, receivership and
other similar laws affecting the enforcement of creditors' rights generally.
Notwithstanding anything herein or in any other document to the contrary, to the
maximum extent provided in Section 3803(b) of the Statutory Trust Act, a trustee
of the Trust, when acting in such capacity, shall not be personally liable to
any Person other than the Trust and the beneficial owners thereof for any act,
omission or obligation of the Trust or any other trustee or other agent or
representative of the Trust; PROVIDED, that no trustee hereunder shall be liable
to any Person for the acts, omissions or obligations of any other trustee
hereunder or of the Grantor and the Trustee shall have no liability to any
Person for the acts, omissions or obligations of any agent or representative of
the Trust appointed in accordance with the following paragraph.
21
In the exercise or administration of the trusts hereunder, the Trustee (i)
may act directly or, at the expense of the Trust, through agents or attorneys,
and the Trustee shall not be liable for the default or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the Trustee
in good faith, and (ii) may, at the expense of the Trust, consult with counsel,
accountants and other experts, and it shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or opinion
of any such counsel, accountants or other experts. The Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties. Whenever in the administration of this
Trust Agreement the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a certificate executed by any
officer of the Grantor.
References to "default" in this Section 6.02 shall only have effect if
this Trust Agreement is amended and restated to provide for any defaults with
respect to the Trust Preferred Securities.
Section 6.03. RESIGNATION AND REMOVAL OF THE TRUSTEE; APPOINTMENT OF
SUCCESSOR TRUSTEE. The Trustee may resign as Trustee at any time by giving
notice of its resignation to the Grantor. The Trustee may be removed by the
Grantor at any time by notice of such removal delivered to the Trustee. Any
resignation or removal of the Trustee shall take effect upon the appointment of
a qualified successor trustee and the successor's acceptance of such appointment
as hereinafter provided.
If the Trustee shall resign or be removed, the Grantor shall, within 45
days after the delivery of the notice of resignation or removal, as the case may
be, appoint a successor trustee, which shall be a bank or trust company, or an
affiliate of a bank or trust company, having its principal office in the State
of Delaware and having a combined capital and surplus of at least $50,000,000.
If a successor Trustee shall not have been appointed in 45 days, the
resigning Trustee may petition a court of competent jurisdiction to appoint a
successor trustee, and the expenses of such proceeding shall be borne by the
Grantor. Every successor trustee shall execute and deliver to its predecessor
and to the Grantor an instrument in writing accepting its appointment hereunder,
and thereupon the resigning or removed Trustee shall be fully released and
discharged of the trusts and duties of the Trustee hereunder and such successor
trustee, without any further act or deed, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor and for all purposes
shall be the Trustee under this Trust Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Grantor, shall
promptly execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the Company Preferred Securities and
any moneys or property held hereunder to such successor and shall deliver or
cause the Registrar to deliver to such successor a list of the Holders of all
outstanding Trust Preferred Securities. Any successor Trustee shall promptly
mail notice of its appointment to the Holders of the Trust Preferred Securities.
22
Any Person into or with which the Trustee may be merged, consolidated or
converted, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of such Trustee without
the execution or filing of any document or any further act, provided such Person
shall be eligible under the provisions of the immediately preceding paragraph.
In connection with any such succession, the Trustee shall file an amendment to
the Certificate of Trust as required by the Statutory Trust Act.
Section 6.04. NOTICES. The Grantor agrees that it shall give timely
notice to the Trustee and any Paying Agent of any record date for the Company
Preferred Securities Certificates, which record date shall become the record
date with respect to the Trust Preferred Securities pursuant to Section 5.04.
Notices to the Holders of the Trust Preferred Securities shall be given as
described in Section 8.04.
Section 6.05. STATUS OF TRUST. It is intended that the Trust shall
constitute a grantor trust under the Internal Revenue Code of 1986, as amended,
and shall not be an "investment company" under the Investment Company Act of
1940, as amended. The Grantor agrees to file all tax returns and reports on
behalf of the Trust.
Section 6.06. [Reserved]
Section 6.07. INDEMNIFICATION BY THE GRANTOR. To the fullest extent
permitted by law, the Grantor and the Group, jointly and severally, agree to
indemnify and defend the Trustee, the Registrar, any transfer agent and any
Paying Agent and their directors, officers, employees and agents against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of or in connection with its
acting as the Trustee or the Registrar, transfer agent or Paying Agent,
respectively, under this Trust Agreement and the Trust Preferred Securities,
except for any liability arising out of negligence, bad faith or willful
misconduct on the part of any such Person or Persons. This Section 6.07 and
Section 6.08 and the obligations of the Grantor and the Group thereunder shall
survive the termination of the Trust and this Agreement.
Section 6.08. FEES, CHARGES AND EXPENSES. All charges or expenses of
the Trust, including the charges or expenses of the Trustee or any Trustee's
counsel or agent hereunder or of any Registrar, transfer agent or Paying Agent,
shall be paid by the Group, or one of its branches or subsidiaries, except that,
if the Trustee incurs fees, charges or expenses for which it is not otherwise
liable under this Trust Agreement at the request or direction of a Holder, such
Holder shall be liable for such fees, charges and expenses.
The Trustee shall have a lien prior to the Trust Preferred Securities upon
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to Section 6.07 or this Section 6.08, except with
respect to funds held in trust for the benefit of the Holders of Trust Preferred
Securities.
Section 6.09. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
property of the Trust must at the time be located,
23
the Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Holders of
the Trust Preferred Securities, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 6.09, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as successor trustee under Section 6.03 and no notice
to the Holders of the Trust Preferred Securities of the appointment of any
co-trustee or separate trustee shall be required; PROVIDED, HOWEVER, that any
co-trustee or separate trustee must be a U.S. person for U.S. federal income tax
purposes.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon and exercised or performed by the Trustee shall be exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed, the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event,
such rights, powers, duties and obligations (including the holding of title
to the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) the Trustee shall not be personally liable by reason of any act
or omission of any separate trustee or co-trustee; and
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Trust Agreement, specifically
including every provision of this Trust Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee and a copy thereof given to the
Grantor.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
24
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.01. SUPPLEMENTAL TRUST AGREEMENT. The Grantor and the
Trustee may, at any time and from time to time, without the consent of the
Holders of the Trust Preferred Securities, enter into one or more agreements
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another partnership, corporation or
other entity to the Grantor and the assumption by any such successor of the
covenants of the Grantor herein contained; or
(b) to add to the covenants of the Grantor for the benefit of the Holders
of the Trust Preferred Securities, or to surrender any right or power herein
conferred upon the Grantor; or
(c) (i) to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or (ii) to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, PROVIDED that any such action taken shall not materially adversely
affect the interests of the Holders of the Trust Preferred Securities; or
(d) to cure any ambiguity or correct any mistake.
Any other amendment or agreement supplemental hereto must be in writing and
approved by Holders of 66 2/3% in liquidation amount of the then outstanding
Trust Preferred Securities.
In executing, or accepting the additional trusts created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the trusts created by this Trust Agreement, the Trustee shall be entitled to
receive, and (subject to Section 6.02) shall be fully protected in relying upon,
an opinion of counsel stating that the execution of such supplemental agreement
is authorized or permitted by this Trust Agreement. The Trustee may, but shall
not be obligated to, enter into any such supplemental agreement which affects
the Trustee's own rights, duties or immunities under this Trust Agreement or
otherwise.
Section 7.02. TERMINATION. The Trust shall dissolve upon the earliest
to occur of: (i) the redemption of all of the Trust Preferred Securities, (ii)
the delivery of a final distribution of the Company Preferred Securities to the
Holders of the Trust Preferred Securities, (iii) dissolution of the Trust in
accordance with the following paragraph [or] (iv) in the event a liquidation of
the Grantor is commenced, as contemplated in Section 5.03 hereof [IF THE COMPANY
PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE TRUST INSERT: or (v) withdrawal
of all of the Company Preferred Securities from the Trust]. The dissolution,
winding up and termination of the Trust shall be performed in accordance with
Section 3808 of the Statutory Trust Act, and the Trustee shall have the power
and authority to wind up the affairs of the Trust in accordance therewith
pursuant to the direction of the Grantor. This Agreement shall terminate upon
the filing of a certificate of cancellation as provided in Section 3810 of the
Statutory Trust Act.
25
The Grantor may instruct the Trustee to dissolve the Trust and distribute
the Company Preferred Securities on a pro rata basis to the Holders of the Trust
Preferred Securities in the case of either a Tax Event with respect to the Trust
or an Investment Company Act Event with respect to the Trust, as each is defined
in the LLC Agreement. Except as provided in Section 6.07 and Section 6.08, upon
termination of the Trust in accordance with the foregoing, the respective
obligations and responsibilities of the Trustee and the Grantor created hereby
shall terminate.
The Trustee shall notify the Paying Agent and the Holders of the Trust
Preferred Securities of any such amendment or termination of the Trust Agreement
within a reasonable period of time.
Upon the completion of winding up of the Trust, including the payment or
the making reasonable provisions for payment of all obligations of the Trust in
accordance with Section 3808(e) of the Statutory Trust Act, the Trustee shall
file a certificate of cancellation with the Delaware Secretary of State in
accordance with Section 3810 of the Statutory Trust Act, at which time the Trust
shall terminate. The Grantor shall act as the liquidator of the Trust and shall
be responsible for directing the Trustee to take all required actions in
connection with winding up and dissolution of the Trust.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. COUNTERPARTS. This Trust Agreement may be executed by
the Grantor, the Trustee and the Group in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Copies of this Trust Agreement shall be filed with the Trustee and
shall be open to inspection during business hours at the Corporate Office by any
Holder of a Trust Preferred Security.
Section 8.02. EXCLUSIVE BENEFITS OF PARTIES. This Trust Agreement is
for the exclusive benefit of the parties hereto and the Holders of the Trust
Preferred Securities, and their respective successors and assigns, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
Person whatsoever.
Section 8.03. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Trust Agreement or of the Trust Preferred
Securities should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions hereof or
thereof shall in no way be affected, prejudiced or disturbed thereby (to the
extent permitted by law).
26
Section 8.04. NOTICES. Any notices to be given to the Grantor
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telecopier, addressed to the Grantor
at:
Credit Suisse Group Capital (Delaware) LLC I
Helvetia Court
South ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
Facsimile: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
With copies to:
Credit Suisse Group
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇.▇. ▇▇▇ ▇
▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: General Counsel
Telephone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇-▇▇▇-▇▇▇▇
or at any place where the Grantor maintains its principal executive office.
Any notices to be given to the Trustee hereunder or under the Trust
Preferred Securities shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telecopier, addressed to the
Trustee at the Corporate Office.
Notices to the Holders of the Trust Preferred Securities shall be given by
delivery of the relevant notice to DTC, Euroclear, Clearstream and any other
relevant securities clearing system for communication by each of them to
entitled Clearing System Participants, and, as long as the Trust Preferred
Securities are listed on one or more stock exchanges and the rules of such stock
exchange(s) so require, notices shall also be published in the manner that the
rules of such stock exchange(s) may require. [IF THE TRUST PREFERRED SECURITIES
WILL BE LISTED ON THE LUXEMBOURG STOCK EXCHANGE INSERT: In addition, for as long
as the rules of the Luxembourg Stock Exchange so require, notices shall be
published in a daily newspaper of general circulation in Luxembourg (which is
expected to be the LUXEMBURGER WORT).]
If the Trust Preferred Securities are no longer held in the name of DTC or
its nominee, notice to the Holders of the Trust Preferred Securities shall be
mailed by first-class mail, postage prepaid, to the Holders' addresses appearing
in the records of the Trust maintained by the Registrar.
Delivery of a notice sent by mail shall be deemed to be effected at the
time when the same is deposited, postage prepaid, in a post office letter box.
Delivery of a notice personally delivered or sent by telecopier shall be deemed
to be effected at the time it is received.
27
Section 8.05. HOLDERS OF THE TRUST PREFERRED SECURITIES ARE PARTIES.
Notwithstanding that Holders of the Trust Preferred Securities have not executed
and delivered this Trust Agreement or any counterpart thereof, the Holders of
the Trust Preferred Securities from time to time shall be bound by all of the
terms and conditions hereof and of the Trust Preferred Securities by acceptance
of delivery of Trust Preferred Securities.
Section 8.06. GOVERNING LAW. THIS TRUST AGREEMENT AND THE TRUST
PREFERRED SECURITIES AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS
HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Section 8.07. HEADINGS. The headings of articles and sections of this
Trust Agreement and the Trust Preferred Securities have been inserted for
convenience only and are not to be regarded as part of this Trust Agreement or
to have any bearing upon the meaning or interpretation of any provision
contained herein or in the Trust Preferred Securities.
Section 8.08. TRUST PREFERRED SECURITIES NON-ASSESSABLE AND FULLY
PAID. The Holders of the Trust Preferred Securities shall not be personally
liable for obligations of the Trust to the fullest extent permitted by law, the
interests in the Trust represented by the Trust Preferred Securities shall be
non-assessable for any losses or expenses of the Trust or for any reason
whatsoever, and the Trust Preferred Securities upon delivery thereof by the
Trustee pursuant to this Trust Agreement are and shall be deemed fully paid.
Section 8.09. NO PREEMPTIVE RIGHTS. No Holder shall be entitled as a
matter of right to subscribe for or purchase, or have any preemptive right with
respect to, any part of any new or additional interest in the Trust, whether now
or hereafter authorized and whether issued for cash or other consideration or by
way of distribution.
Section 8.10. SURVIVAL. The rights and protections of the Trustee
hereunder, including, without limitation, its right to defense, indemnity,
expense reimbursement and compensation for its services hereunder, shall survive
the termination of the Trust and this Trust Agreement and the resignation or
removal of the Trustee.
28
IN WITNESS WHEREOF, the Grantor and the Trustee have duly executed this
Trust Agreement as of the day and year first above set forth.
CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC I,
as Grantor
By:
--------------------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Name:
Title:
Credit Suisse Group joins in this Trust Agreement solely for purposes
of obligating itself under Sections 6.07 and 6.08 of this Trust Agreement and
not as grantor, trustee or beneficiary.
CREDIT SUISSE GROUP
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
29
Exhibit A
THIS [GLOBAL]* CERTIFICATE IS ISSUED IN RESPECT OF AN ISSUE OF THE [INSERT
TITLE OF TRUST PREFERRED SECURITIES] (THE "TRUST PREFERRED SECURITIES") OF
CREDIT SUISSE GROUP CAPITAL (DELAWARE) TRUST I (THE "TRUST"), ISSUED PURSUANT TO
AN AMENDED AND RESTATED TRUST AGREEMENT DATED AS OF ________, 2002 (THE
"AGREEMENT") OF THE TRUST AND IS GOVERNED BY THE TERMS AND CONDITIONS OF THE
AGREEMENT GOVERNING THE TRUST PREFERRED SECURITIES, WHICH TERMS AND CONDITIONS
ARE INCORPORATED HEREIN BY REFERENCE AND, EXCEPT AS OTHERWISE PROVIDED HEREIN,
SHALL BE BINDING ON THE TRUST, CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC I (THE
"GRANTOR") AND THE HOLDER HEREOF AS IF FULLY SET FORTH HEREIN. UNLESS THE
CONTEXT OTHERWISE REQUIRES, THE TERMS USED HEREIN SHALL HAVE THE MEANINGS
SPECIFIED IN THE AGREEMENT.
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
AGREEMENT AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
TRUST PREFERRED SECURITY OF
CREDIT SUISSE GROUP CAPITAL (DELAWARE) TRUST I,
a Delaware Statutory Trust,
representing $___ aggregate liquidation preference of
___ [Insert title of Company Preferred Securities],
liquidation preference $[Insert minimum denomination] per security, of
CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC I
(a Delaware Limited Liability Company)
*Insert in Global Certificates only
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CERTIFICATE NO.- COMMON CODE: -
ISIN NUMBER: -
Chase Manhattan Bank USA, National Association, not in its individual
capacity, but solely as Trustee (the "Trustee") on behalf of the above-named
Trust, hereby certifies that [Cede & Co.]* is the registered owner of $________
liquidation amount of [Insert title of Trust Preferred Securities], stated
liquidation amount $[Insert minimum denomination] per security ("Trust Preferred
Securities"), representing undivided beneficial interests in a corresponding
amount of [Insert title of Company Preferred Securities] (the "Company Preferred
Securities") of Credit Suisse Group Capital (Delaware) LLC I, a Delaware limited
liability company (the "Grantor"), deposited in trust by the Grantor with the
Trustee pursuant to an Amended and Restated Trust Agreement of Credit Suisse
Group Capital (Delaware) Trust I, dated as of ________, 2002 (as amended or
supplemented from time to time, the "Trust Agreement") between the Grantor and
the Trustee. Subject to the terms of the Trust Agreement, the registered Holder
hereof owns an undivided beneficial interest in the number of Company Preferred
Securities held by the Trustee under the Trust Agreement corresponding to the
number of Trust Preferred Securities evidenced by this global certificate,
including the distribution, voting, liquidation and other rights of such Company
Preferred Securities specified in the Amended and Restated Limited Liability
Company Agreement of the Grantor, as amended, a copy of which is on file at the
Corporate Office of the Trustee.
(i) THE TRUST AGREEMENT. The Trust Preferred Securities are issued
upon the terms and conditions set forth in the Trust Agreement. The Trust
Agreement (a copy of which is on file at the Corporate Office of the Trustee)
sets forth the rights of Holders of the Trust Preferred Securities and the
rights and duties of the Trustee and the Grantor. The statements made herein are
summaries of certain provisions of the Trust Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. In the event of
any conflict or discrepancy between the provisions hereof and the provisions of
the Trust Agreement, the provisions of the Trust Agreement shall govern. Unless
otherwise expressly herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Trust Agreement.
(ii) ENFORCEMENT OF RIGHTS [IF THE COMPANY PREFERRED SECURITIES MAY BE
WITHDRAWN FROM THE TRUST INSERT: ; WITHDRAWAL OF COMPANY PREFERRED SECURITIES].
To the fullest extent permitted by law, without the need for any other action of
any Person, including the Trustee or any other Holder, each Holder shall be
entitled to enforce, in the name of the Trust, the rights of the Trust in
respect of the number of Company Preferred Securities and the related rights
under the Subordinated Guarantee corresponding to the number of Trust Preferred
Securities held by such Holder. Any recovery on such enforcement action shall
belong solely to such Holder who brought the action, not to the Trust, the
Trustee or any other Holder individually or to Holders as a group.
[IF THE COMPANY PREFERRED SECURITIES MAY BE WITHDRAWN FROM THE TRUST
INSERT: Any beneficial owner of Trust Preferred Securities may withdraw all, but
not less than all, of the number of Company Preferred Securities corresponding
to such Trust Preferred Securities by providing a written notice to the Trustee,
with evidence of beneficial ownership in form satisfactory to the Trustee, and
providing to the Grantor such documents or information as the Grantor may
request for tax reporting purposes at the Corporate Office. Such notice shall
also be
*Insert in Global Certificates only
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deemed to be such beneficial owner's agreement to be subject to the terms of the
LLC Agreement.]
(iii) DISTRIBUTIONS OF DIVIDENDS ON COMPANY PREFERRED SECURITIES.
Whenever (and to the extent) the Trust receives any cash payment representing a
Dividend or redemption payment on the Company Preferred Securities, the Trustee
acting directly or through any Paying Agent shall distribute such amounts to
Holders of Trust Preferred Securities on the record date therefor, in proportion
to the respective liquidation amounts of the Trust Preferred Securities held by
such Holders.
(iv) REDEMPTIONS OF COMPANY PREFERRED SECURITIES. The Trust Preferred
Securities shall be redeemed only upon redemption of the Company Preferred
Securities.
If the Grantor redeems the Company Preferred Securities in accordance with
the LLC Agreement, then the Grantor shall give the Trustee at least 30 days'
prior notice before doing so. The Trustee shall mail a notice of the redemption
not less than 25 days prior to the date fixed for redemption of the Company
Preferred Securities to the Holders of the Trust Preferred Securities. No defect
in the notice of redemption or in the mailing or delivery thereof or publication
of its contents shall affect the validity of the redemption proceedings.
If only some of the outstanding Trust Preferred Securities are to be
redeemed, the Trust Preferred Securities to be redeemed shall be selected in
accordance with DTC's procedures. If the Trust Preferred Securities do not
remain registered in the name of DTC or its nominee and only some of the
outstanding Trust Preferred Securities are to be redeemed, the Trust Preferred
Securities shall be redeemed proportionally or selected for redemption by the
Trustee pursuant to the rules of any securities exchange on which the Trust
Preferred Securities are listed at that time or by such method as the Trustee
shall deem fair and appropriate. The Grantor shall promptly notify in writing
the Registrar and Transfer Agent for the Trust Preferred Securities of the Trust
Preferred Securities selected for partial redemption in accordance with the
foregoing provisions.
On the date of redemption of the Company Preferred Securities, so long as
the Grantor or the Group has deposited with the Paying Agent on behalf of the
Trust the aggregate amount payable upon redemption of all the Company Preferred
Securities held by the Trust to be redeemed, the Paying Agent on behalf of the
Trust shall, if the Trust Preferred Securities are represented by Global
Certificates, irrevocably deposit with DTC funds sufficient to pay the
redemption price and give DTC irrevocable instructions to pay the redemption
price to the Holders of the Trust Preferred Securities to be redeemed.
(v) DISTRIBUTIONS IN LIQUIDATION OF GRANTOR. Upon receipt by the
Trust of any Liquidation Preference from the Grantor upon the liquidation of the
Grantor, after satisfaction of creditors of the Trust required by applicable
law, the Trust shall distribute the same to Holders of the Trust Preferred
Securities on the record date therefor, in proportion to the respective
Liquidation Preference of the number of Company Preferred Securities
corresponding to the Trust Preferred Securities held by such Holders.
(vi) FIXING OF RECORD DATE FOR HOLDERS OF THE TRUST PREFERRED
SECURITIES. Each Regular Distribution on the Trust Preferred Securities shall be
payable to the Holders of record
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as they appear on the Register on the corresponding record date. The record date
for Regular Distributions is the fifteenth calendar day prior to the relevant
distribution date. Whenever any other distribution shall become payable, or
whenever the Trustee shall receive notice of any meeting at which holders of the
Company Preferred Securities are entitled to vote or of which holders of the
Company Preferred Securities are entitled to notice, the Trustee shall in each
such instance fix a record date (which shall be the same date as the record date
fixed by the Grantor with respect to the Company Preferred Securities, of which
the Grantor shall promptly inform the Trustee) for the determination of the
Holders of the Trust Preferred Securities who shall be entitled (i) to receive
such distribution or (ii) to receive notice of, and to give instructions for the
exercise of voting rights at, any such meeting.
(vii) PAYMENT OF DISTRIBUTIONS. As long as the Trust Preferred
Securities are in book-entry form, payments on the Trust Preferred Securities
shall be made to DTC, which shall credit the relevant accounts at DTC on the
scheduled payment dates. The payments shall be distributed to participants,
indirect participants and beneficial owners of the Trust Preferred Securities in
accordance with DTC's procedures.
If definitive Trust Preferred Securities are issued, payments on the Trust
Preferred Securities shall be made by check mailed to the address of the Holder
entitled to receive the payment, as such address appears in the Register.
Payments of the redemption price of, and distributions in liquidation on, Trust
Preferred Securities shall be made upon surrender of such Trust Preferred
Securities at the office of the Paying Agent.
(viii) VOTING RIGHTS. If at any time, the holders of Company Preferred
Securities are entitled to vote under the LLC Agreement or the Subordinated
Guarantee, the Trustee shall: (i) notify the Holders of the Trust Preferred
Securities of such right, (ii) request specific direction from each Holder as to
the vote with respect to the Company Preferred Securities represented by such
Holder's Trust Preferred Securities, and (iii) vote the relevant Company
Preferred Securities only in accordance with such specific direction.
Upon receiving notice of any meeting at which the holders of Company
Preferred Securities are entitled to vote, the Trustee shall, as soon as
practicable, mail to the Holders of the Trust Preferred Securities a notice. The
Grantor shall provide the form of notice to the Trustee to be forwarded to the
Holders of the Trust Preferred Securities. The notice shall contain: (i) all the
information that is contained in the notice announcing the meeting of the
Company Preferred Securities, (ii) a statement that the Holders of the Trust
Preferred Securities shall be entitled, subject to any applicable provision of
law, to direct the Trustee specifically as to the exercise of the voting rights
pertaining to the number of the Company Preferred Securities represented by
their respective Trust Preferred Securities, and (iii) a brief description of
the manner in which the Holders of the Trust Preferred Securities may give such
specific directions.
If the Trust receives a written direction from a Holder, the Trustee shall
vote, or cause to be voted, the amount of the Company Preferred Securities
represented by such Holder's Trust Preferred Securities in accordance with the
instructions set forth in the directions. If the Trustee does not receive
specific instructions from any Holder, the Trustee shall abstain from voting the
Company Preferred Securities represented by such Holder's Trust Preferred
Securities.
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(ix) CURRENCY. All distribution and other payments and all other
monetary rights and obligations in respect of the Trust Preferred Securities
shall be made or performed in U.S. dollars.
(x) TRANSFER AND EXCHANGE OF TRUST PREFERRED SECURITIES. Subject to
the terms and conditions of the Trust Agreement, the Registrar shall register
the transfers on the Register from time to time of Trust Preferred Securities
upon any surrender thereof by the Holder in person or by a duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any transfer
taxes as may be required by law. Upon such surrender, the Trustee shall execute
a new Trust Preferred Security representing the same corresponding amount of the
Company Preferred Securities and deliver the same to or upon the order of the
Person entitled thereto.
Upon surrender of a Trust Preferred Security at the office of the Registrar
or such other office as the Trustee may designate for the purpose of effecting
an exchange of Trust Preferred Securities, subject to the conditions to transfer
set forth in the Trust Agreement, the Trustee shall execute and deliver a new
Trust Preferred Security representing the same corresponding amount of Company
Preferred Securities as the Trust Preferred Security surrendered.
As a condition precedent to the registration of the transfer or exchange of
any Trust Preferred Security, the Registrar, may require (i) the production of
proof satisfactory to it as to the identity and genuineness of any signature;
(ii) compliance with such regulations, if any, as the Trustee or the Registrar
may establish not inconsistent with the provisions of the Trust Agreement; and
(iii) such other information as the Registrar may reasonably request.
No Holder may require the transfer of any Trust Preferred Security to be
registered during the period of fifteen days ending on the due date for any
payment of the Liquidation Preference on the Trust Preferred Securities. The
Trust shall not be required to register, or cause others to register, the
transfer of Trust Preferred Securities after such Trust Preferred Securities
have been called for redemption.
(xi) TITLE TO TRUST PREFERRED SECURITIES. It is a condition of the
Trust Preferred Securities, and every successive Holder hereof by accepting or
holding the same consents and agrees, that title to this Trust Preferred
Security, when properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, is transferable by delivery with the same
effect as in the case of a negotiable instrument; PROVIDED, HOWEVER, that until
the transfer of this Trust Preferred Security shall be registered on the books
of the Trust, the Trustee, the Registrar and the Grantor may, notwithstanding
any notice to the contrary, treat the Holder hereof at such time as the absolute
owner hereof for the purpose of determining the Person entitled to distributions
(subject to Section 5.04 of the Trust Agreement) or to any notice provided for
in the Trust Agreement and for all other purposes.
(xii) REPORTS, INSPECTION OF TRANSFER BOOKS. The Trustee shall make
available for inspection by Holders of the Trust Preferred Securities at the
Corporate Office and at such other places as it may from time to time deem
advisable during normal business hours any reports and communications received
by the Trustee as the record holder of the Company Preferred Securities. The
Registrar shall keep books at its corporate trust office for the registration of
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transfer of Trust Preferred Securities, which books at all reasonable times
shall be open for inspection by the Holders of the Trust Preferred Securities as
and to the extent provided by applicable law.
(xiii) SUPPLEMENTAL TRUST AGREEMENT. The Grantor and the Trustee may, at
any time and from time to time, without the consent of the Holders of the Trust
Preferred Securities, enter into one or more agreements supplemental to the
Trust Agreement, in form satisfactory to the Trustee, for any of the following
purposes: (a) to evidence the succession of another partnership, corporation or
other entity to the Grantor and the assumption by any such successor of the
covenants of the Grantor contained therein; (b) to add to the covenants of the
Grantor for the benefit of the Holders of the Trust Preferred Securities, or to
surrender any right or power therein conferred upon the Grantor; (c)(i) to
correct or supplement any provision therein which may be defective or
inconsistent with any other provision therein or (ii) to make any other
provisions with respect to matters or questions arising under the Trust
Agreement, PROVIDED that any such action shall not materially adversely affect
the interests of the Holders of the Trust Preferred Securities; or (d) to cure
any ambiguity or correct any mistake. Any other amendment or agreement
supplemental thereto must be in writing and approved by Holders of 66 2/3% in
liquidation amount of the then outstanding Trust Preferred Securities.
(xiv) GOVERNING LAW. The Trust Agreement and this Trust Preferred
Security and all rights thereunder and hereunder and provisions thereof and
hereof shall be governed by, and construed in accordance with, the law of the
State of Delaware.
(xv) TRUST PREFERRED SECURITY NON-ASSESSABLE AND FULLY PAID. Holders
of the Trust Preferred Securities shall not be personally liable for obligations
of the Trust to the fullest extent permitted by law, the interest in the Trust
represented by the Trust Preferred Securities shall be non-assessable for any
losses or expenses of the Trust or for any reason whatsoever and the Trust
Preferred Securities upon delivery thereof by the Trustee pursuant to the Trust
Agreement are and shall be deemed fully paid.
(xvi) LIABILITY OF HOLDERS OF THE TRUST PREFERRED SECURITIES. Holders
of the Trust Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(xvii) NO PREEMPTIVE RIGHTS. No Holder shall be entitled as a matter
of right to subscribe for or purchase, or have any preemptive right with respect
to, any part of any new or additional interest in the Trust, whether now or
hereafter authorized and whether issued for cash or other consideration or by
way of distribution.
This Trust Preferred Security shall not be entitled to any benefits under
the Trust Agreement or be valid or obligatory for any purpose unless this Trust
Preferred Security shall have been executed by the Trustee by the manual
signature of a duly authorized officer of the Trustee; PROVIDED, HOWEVER, that
such signature may be a facsimile if a Registrar (other than the Trustee) shall
have countersigned this Trust Preferred Security by manual signature of a duly
authorized officer of the Registrar.
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THE TRUSTEE IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY COMPANY PREFERRED
SECURITIES. THE TRUSTEE ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE GRANTOR
SUMMARIZING CERTAIN PROVISIONS OF THE TRUST AGREEMENT. THE TRUSTEE MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF
THE COMPANY PREFERRED SECURITIES OR OF THE TRUST PREFERRED SECURITIES; OR AS TO
THE VALIDITY OR SUFFICIENCY OF THE TRUST AGREEMENT, THE LLC AGREEMENT OR THE
SUBORDINATED GUARANTEE; OR AS TO THE VALUE OF THE TRUST PREFERRED SECURITIES OR
AS TO ANY RIGHT, TITLE OR INTEREST OF THE HOLDERS OF THE TRUST PREFERRED
SECURITIES IN AND TO THE TRUST PREFERRED SECURITIES.
Dated: _________, 2002
CREDIT SUISSE GROUP CAPITAL (DELAWARE) TRUST I
By: Chase Manhattan Bank USA, National
Association, not in its individual
capacity, but solely as Trustee on behalf
of the Trust
By:
---------------------------------------
Name:
Title:
[Countersigned:
JPMorgan Chase Bank,
as Registrar
By:
-------------------------
Name:
Title: Authorized Officer]
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