Exhibit 4.6
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
OF ▇▇▇▇▇▇ CAPITAL TRUST II
By and Among
▇▇▇▇▇▇ CORPORATION
as Sponsor,
THE CHASE MANHATTAN BANK
as Property Trustee,
Chase Manhattan Bank USA, National Association,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ________
CROSS REFERENCE TABLE*
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED AGREEMENT
---------------- ---------
310(A) ............................................................6.3
310(B) .................................................6.3(c); 6.3(d)
310(C) ...................................................INAPPLICABLE
311(A) .........................................................2.2(b)
311(B) .........................................................2.2(b)
311(C) ...................................................INAPPLICABLE
312(A) .........................................................2.2(a)
312(B) .........................................................2.2(b)
312(C) ...................................................INAPPLICABLE
313(A) ............................................................2.3
313(B) ............................................................2.3
313(C) ............................................................2.3
313(D) ............................................................2.3
314(A) ............................................................2.4
314(B) ...................................................INAPPLICABLE
314(C) ............................................................2.5
314(D) ...................................................INAPPLICABLE
314(E) ............................................................2.5
314(F) ...................................................INAPPLICABLE
315(A) ................................................3.9(b); 3.10(a)
315(B) .........................................................2.7(a)
315(C) .........................................................3.9(a)
315(D) .........................................................3.9(b)
316(A) ............................................2.6; 7.5(b); 7.6(c)
316(B) ...................................................INAPPLICABLE
316(C) ...................................................INAPPLICABLE
317(A) ...........................................................3.16
317(B) ...................................................INAPPLICABLE
318(A) .........................................................2.1(c)
---------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
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TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION AND DEFINITIONS ...................................................1
Section 1.1 Interpretation and Definitions ..............................................1
ARTICLE 2 TRUST INDENTURE ACT ..............................................................9
Section 2.1 Trust Indenture Act; Application ............................................9
Section 2.2 Lists of Holders of Securities ..............................................9
Section 2.3 Reports by the Property Trustee ............................................10
Section 2.4 Periodic Reports to the Property Trustee ...................................10
Section 2.5 Evidence of Compliance with Conditions Precedent ...........................10
Section 2.6 Trust Enforcement Events; Waiver ...........................................10
Section 2.7 Trust Enforcement Event; Notice ............................................12
ARTICLE 3 ORGANIZATION ....................................................................12
Section 3.1 Name and Organization ......................................................12
Section 3.2 Office .....................................................................13
Section 3.3 Purpose ....................................................................13
Section 3.4 Authority ..................................................................13
Section 3.5 Title to Property of the Trust .............................................14
Section 3.6 Powers and Duties of the Administrative Trustees ...........................14
Section 3.7 Prohibition of Actions by the Trust and the Trustees .......................16
Section 3.8 Powers and Duties of the Property Trustee ..................................17
Section 3.9 Certain Duties and Responsibilities of the Property Trustee ................19
Section 3.10 Certain Rights of Property Trustee .........................................21
Section 3.11 Delaware Trustee ...........................................................23
Section 3.12 Execution of Documents .....................................................24
Section 3.13 Not Responsible for Recitals or Issuance of Securities .....................24
Section 3.14 Duration of Trust ..........................................................24
Section 3.15 Mergers ....................................................................24
Section 3.16 Property Trustee May File Proofs of Claim ..................................26
ARTICLE 4 SPONSOR .........................................................................27
Section 4.1 Responsibilities of the Sponsor ............................................27
Section 4.2 Fees and Expenses of the Trustees ..........................................27
ARTICLE 5 TRUST COMMON SECURITIES HOLDER ..................................................28
Section 5.1 Debenture Issuer's Purchase of Common Securities ...........................28
Section 5.2 Covenants of the Common Securities Holder ..................................28
ARTICLE 6 TRUSTEES ........................................................................28
Section 6.1 Number of Trustees .........................................................28
Section 6.2 Delaware Trustee; Eligibility ..............................................29
Section 6.3 Property Trustee; Eligibility ..............................................29
Section 6.4 Qualifications of Administrative Trustees and Delaware Trustee Generally ...30
Section 6.5 Initial Administrative Trustees ............................................30
Section 6.6 Appointment, Removal and Resignation of Trustees ...........................30
Section 6.7 Vacancies among Trustees ...................................................32
Section 6.8 Effect of Vacancies ........................................................32
Section 6.9 Meetings ...................................................................32
Section 6.10 Delegation of Power ........................................................32
Section 6.11 Merger, Conversion, Consolidation or Succession to Business .........................33
ARTICLE 7 TERMS OF SECURITIES ....................................................................33
Section 7.1 General Provisions Regarding Securities .............................................33
Section 7.2 Distributions .......................................................................36
Section 7.3 Redemption of Securities ............................................................37
Section 7.4 Redemption Procedures ...............................................................37
Section 7.5 Voting Rights of Trust Preferred Securities .........................................39
Section 7.6 Voting Rights of Common Securities ..................................................41
Section 7.7 Paying Agent ........................................................................42
Section 7.8 [INTENTIONALLY OMITTED] .............................................................43
Section 7.9 Transfer of Securities ..............................................................43
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates ...................................44
Section 7.11 Deemed Security Holders .............................................................44
Section 7.12 Global Securities ...................................................................45
Section 7.13 [INTENTIONALLY OMITTED] .............................................................47
Section 7.14 Cancellation ........................................................................47
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST ...................................................47
Section 8.1 Dissolution and Termination of Trust ................................................47
Section 8.2 Liquidation Distribution Upon Dissolution of the Trust ..............................48
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS ..........48
Section 9.1 Liability ...........................................................................48
Section 9.2 Exculpation .........................................................................49
Section 9.3 Fiduciary Duty ......................................................................49
Section 9.4 Indemnification .....................................................................50
Section 9.5 Outside Businesses ..................................................................53
ARTICLE 10 ACCOUNTING ............................................................................53
Section 10.1 Fiscal Year .........................................................................53
Section 10.2 Certain Accounting Matters ..........................................................53
Section 10.3 Banking .............................................................................54
Section 10.4 Withholding .........................................................................54
ARTICLE 11 AMENDMENTS AND MEETINGS ...............................................................54
Section 11.1 Amendments ..........................................................................54
Section 11.2 Meetings of the Holders of Securities; Action by Written Consent ....................57
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE ..............................58
Section 12.1 Representations and Warranties of the Property Trustee ..............................58
Section 12.2 Representations and Warranties of the Delaware Trustee ..............................59
ARTICLE 13 MISCELLANEOUS .........................................................................59
Section 13.1 Notices .............................................................................59
Section 13.2 Governing Law .......................................................................60
Section 13.3 Intention of the Parties ............................................................60
Section 13.4 Headings ............................................................................60
Section 13.5 Successors and Assigns ..............................................................61
Section 13.6 Partial Enforceability ..............................................................61
Section 13.7 Counterparts ........................................................................61
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EXHIBITS
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EXHIBIT A FORM OF TRUST PREFERRED SECURITY CERTIFICATE
EXHIBIT B FORM OF COMMON SECURITY CERTIFICATE
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT OF ▇▇▇▇▇▇ CAPITAL TRUST II (the
"Trust Agreement"), dated as of ________, is entered into by and among (i)
▇▇▇▇▇▇ Corporation, a Virginia corporation, as sponsor (the "Sponsor"), (ii)(a)
The Chase Manhattan Bank, a New York banking corporation, as initial Property
Trustee, (b) Chase Manhattan Bank USA, National Association, as initial Delaware
Trustee, and (c) __________, an individual, and _________, an individual, each
of whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(each an "Administrative Trustee" and, collectively, the "Administrative
Trustees" and, together with the Property Trustee and the Delaware Trustee, the
"Trustees", all not in their individual capacities, but solely as Trustees) and
(iii) the several Holders as hereinafter defined.
RECITALS
WHEREAS, the Delaware Trustee and the Sponsor established ▇▇▇▇▇▇ Capital
Trust II (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a Trust
Agreement dated as of October 15, 2001, (the "Original Trust Agreement") and a
Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on October 16, 2001;
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial interests in the assets of the
Trust, to invest the proceeds from such sales in the Debentures issued by the
Debenture Issuer and to engage in only those activities necessary or incidental
thereto; and
WHEREAS, the parties hereto, by this Trust Agreement, amend and restate
each and every term and provision of the Original Trust Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this Trust
Agreement constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions. Unless the context otherwise
------------------------------
requires:
(a) capitalized terms used in this Trust Agreement but not defined in the
preamble above have the meanings assigned to them in this Section 1.1;
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(b) a term defined anywhere in this Trust Agreement has the same meaning
throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement" are
to this Trust Agreement as modified, supplemented or amended from time to time;
(d) all references in this Trust Agreement to Articles, Sections, Recitals
and Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this
Trust Agreement unless otherwise specified;
(e) unless otherwise defined in this Trust Agreement, a term defined in the
Trust __ Indenture Act has the same meaning when used in this Trust Agreement;
and
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable.
(g) the following terms have the following meanings:
"Additional Tax Sums" has the meaning specified in Section 4.7 of the
Indenture.
"Administrative Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Affiliate" of any specified Person shall mean any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person shall mean 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" shall have meanings correlative to
the foregoing.
"Authorized Officer" of a Person means any Person who is authorized to bind
such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 90 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or
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relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such Person
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate action
by such Person in furtherance of any such action.
"Beneficial Owners" means, for Trust Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Trust Preferred
Securities which is reflected on the records of the Depositary through the
Depositary Participants.
"Business Day" means any day, other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the Borough of Manhattan, The City of New
York, are authorized or required by law, regulation or executive order to close,
or (iii) a day on which the Corporate Trust Office or the Indenture Trustee's
principal corporate office is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Trust Preferred
Security Certificate.
"Certificate of Trust" has the meaning specified in the Recitals hereto.
"Closing Date" means the date or dates on which the Trust Preferred
Securities are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Trust
Agreement, as such specific section or corresponding provision is in effect on
the date of application of the provisions of this Trust Agreement containing
such reference.
"Commission" means the Securities and Exchange Commission or any successor
thereto.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in fully
registered form representing one or more Common Securities, substantially in the
form of Exhibit B hereto.
"Common Securities Holder" means ▇▇▇▇▇▇ Corporation, in its capacity as
purchaser and holder of all of the Common Securities issued by the Trust.
3
"Corporate Trust Office" means the office of the Property Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Trust Agreement is
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Institutional Trust Services.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder.
"Debentures" shall mean the __% [Junior] Subordinated Debentures due
________ to be issued, from time to time, by the Debenture Issuer under the
Indenture.
"Debenture Issuer" shall mean ▇▇▇▇▇▇ Corporation, a Virginia corporation,
in its capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" shall mean (A) any Administrative
Trustee, (B) any Affiliate of any Administrative Trustee, (C) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee or any Affiliate thereof or (D) any officer,
employee or agent of the Trust or its Affiliates.
"Delaware Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities.
"Depositary Participant" means a member of, or participant in, the
Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Trust Preferred Security
Certificate.
"Guarantee" means the Trust Preferred Securities Guarantee Agreement, dated
as of [ ], of the Sponsor in respect of the Securities.
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"Holder" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of Trust Preferred Securities have voted on
any matter provided for in this Trust Agreement, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Trust
Preferred Securities remain in the form of one or more Global Securities and if
the Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Trust Preferred Securities are credited on the record date, the
term "Holders" shall mean such Depositary Participants acting at the direction
of the Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the [Junior] Subordinated Indenture, dated as of _____
__, 200_ as [previously supplemented and amended and as further] supplemented
and amended by the ______ Supplemental Indenture dated as of ________ (the
"______ Supplemental Indenture"), between the Debenture Issuer and The Chase
Manhattan Bank, as Trustee, pursuant to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term "Event of
Default" in the Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an opinion of
a nationally recognized independent counsel (an "Investment Company Act
Opinion"), to the effect that, as a result of the occurrence of a change in law
or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is required
to be registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective on or after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"Liquidation Amount" means the stated amount of $1,000 per Trust Preferred
Security.
"List of Holders" has the meaning specified in Section 2.2(a).
5
"Majority in Liquidation Amount" means, except as provided in the terms of
the Trust Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Trust Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate Liquidation Amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers of such Person. To
the extent applicable, such certificate will also specify procedures, acceptable
to the Property Trustee, regarding the issuance of a Tranche of Securities. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer on behalf of such Person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been
complied with; provided, that the term "Officers' Certificate", when used
with reference to Administrative Trustees who are natural persons shall
mean a certificate signed by two or more of the Administrative Trustees
which otherwise satisfies the foregoing requirements.
"Paying Agent" has the meaning specified in Section 7.7.
"Payment Amount" has the meaning specified in Section 7.2(c).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Property Account" has the meaning specified in Section 3.8(c).
6
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by the relevant Holder in
relation to the aggregate Liquidation Amount of all Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there are
only two Administrative Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in Section
7.4(a) hereto.
"Redemption Price" means the Liquidation Amount of the Securities to be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust
plus an amount equal to accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
"Responsible Officer" means, with respect to the Property Trustee, any
officer with direct responsibility for the administration of this Trust
Agreement and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Trust Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Special Event" means a Tax Event or an Investment Company Event.
"Sponsor" means ▇▇▇▇▇▇ Corporation, a Virginia corporation, or any
successor entity in a transaction involving the Sponsor that is permitted by
Article XI of the Indenture and pursuant to which the successor agrees in
writing to perform the Sponsor's obligations hereunder.
"Successor Delaware Trustee" has the meaning specified in Section 6.6(b).
"Successor Entity" has the meaning specified in Section 3.15(b)(i)(B).
"Successor Property Trustee" has the meaning specified in Section 6.6(b).
"Successor Security" has the meaning specified in Section 3.15(b)(i)(B).
"Super Majority" has the meaning specified in Section 2.6(a)(ii).
7
"Tax Event" means the receipt by the Trust of an opinion of independent tax
counsel experienced in such matters ("Tax Event Opinion"), to the effect that,
as a result of (a) any amendment to, change in or announced prospective change
in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative written decision, pronouncement or action, or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement, decision or action
is announced on or after the Closing Date, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable to the Trust by the
Debenture Issuer on the Debentures is not, or within 90 days of the date of such
opinion will not be, deductible, in whole or in part, by the Debenture Issuer
for United States federal income tax purposes, or (iii) the Trust is, or will be
within 90 days of the date of such opinion, subject to a material amount of
other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Trust Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Trust Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate Liquidation Amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Tranche" means Securities issued after the initial Closing Date which are
of the same series as the Securities and have identical terms as the Securities,
except for aggregate amount, the price at which such Securities are sold to the
public and the date of issuance.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Enforcement Event" in respect of the Securities means (i) an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures or (ii) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (A) the distribution of the
Debentures to the holders of the Securities, (B) the redemption of all of the
Securities and (C) mergers, consolidations or amalgamations of the Trust
permitted by this Trust Agreement.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trust Preferred Security" has the meaning specified in Section 7.1.
"Trust Preferred Security Certificate" means a definitive certificate in
fully registered form representing one or more Trust Preferred Securities,
substantially in the form of Exhibit A.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit in, or
owing to the Property Account (as defined in Section 3.8(c)(i) herein) and (iii)
all proceeds and rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property Trustee
pursuant to this Agreement.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 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.
(b) The Property Trustee shall be the only Trustee that is a Trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust Agreement
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
representing undivided beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide the Property Trustee at any time when the Property Trustee
is not also acting as Security Registrar for the Securities (i) except while the
Trust Preferred Securities are represented by one or more Global Securities, at
least five Business Days prior to the date for payment of Distributions, a list,
in such form as the Property Trustee may reasonably require, of the names and
addresses of the Holders of the Securities ("List of Holders") as of the record
date relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Administrative Trustees on behalf of the Trust shall be
obligated to provide
9
such List of Holders at any time the List of Holders does not differ from
the most recent List of Holders given to the Property Trustee by the Sponsor and
the Administrative Trustees on behalf of the Trust. The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity), provided that the Property Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Property Trustee shall comply with its obligations under, and shall
be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
Section 2.3 Reports by the Property Trustee. Within 60 days after May 15 of
-------------------------------
each year (commencing with the year of the initial issuance of the Trust
Preferred Securities), the Property 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 Property Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act. The Sponsor shall
promptly notify the Property Trustee when the Trust Preferred Securities are
listed on any stock exchange or national automated quotation system.
Section 2.4 Periodic Reports to the Property Trustee. Each of the Sponsor
----------------------------------------
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314(a)(4) of the Trust Indenture Act in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, provided that
such compliance certificate shall be delivered on or before 120 days after the
end of each calendar year of the Sponsor.
Section 2.5 Evidence of Compliance with Conditions Precedent. Each of the
------------------------------------------------
Sponsor and the Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Trust Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
--------------------------------
(a) The Holders of a Majority in Liquidation Amount of the Trust Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Trust Preferred Securities, waive any past Trust Enforcement Event in
respect of the Trust Preferred Securities and its consequences, provided that,
if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement
Event under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater than
a majority in principal amount of the Debentures (a "Super Majority")
to be waived under the Indenture, the related Trust Enforcement Event
under the Trust Agreement may only be waived by the vote or written
consent of the Holders of at
10
least the proportion in Liquidation Amount of the Trust Preferred
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(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 Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Trust Enforcement Event with respect
to the Trust Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement and the Trust Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Trust Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the Trust Preferred
Securities of a Trust Enforcement Event with respect to the Trust Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Trust Agreement without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Trust
Enforcement Event under the Trust Agreement as provided below in this
Section 2.6(b), the Trust Enforcement Event under the Trust Agreement
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Trust Enforcement Event
under the Trust Agreement as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Trust Agreement may only be
waived by the vote or written consent of the Holders of at least the
proportion in Liquidation Amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding; provided further, each Holder of Common
Securities will be deemed to have waived any Trust Enforcement Event
and all Trust Enforcement Events with respect to the Common Securities
and the consequences thereof until all Trust Enforcement Events with
respect to the Trust Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with
respect to the Trust Preferred Securities have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will
have the right to direct the Property Trustee in accordance with the
terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such Sections
11
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such cure, waiver or other
elimination, any such default shall cease to exist and any Trust
Enforcement Event with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or
other Trust Enforcement Event with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Trust Preferred Securities constitutes a
waiver of the corresponding Trust Enforcement Event with respect to the Trust
Preferred Securities under this Trust Agreement. The foregoing provisions of
this Section 2.6(c) 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 Securities, as permitted by
the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
-------------------------------
(a) The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event actually known to a Responsible Officer of the Property
Trustee, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all such defaults with respect to the Securities, unless
such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) and (b) being hereby defined
to be an Indenture Event of Default, not including any periods of grace provided
for therein and irrespective of the giving of any notice provided therein);
provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 6.1(a)(1) and (b) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice pursuant to Section 3.10(a)(xiv) or of which a
Responsible Officer of the Property Trustee charged with the
administration of this Trust Agreement shall have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization. The Trust hereby continued is named
---------------------
"▇▇▇▇▇▇ Capital Trust II" as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Securities,
the Property Trustee and the
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Delaware Trustee. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
Section 3.2 Office. The address of the principal office of the Trust is c/o
------
▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. On
10 Business Days' written notice to the Holders of Securities, the Property
Trustee and the Delaware Trustee, the Administrative Trustees may designate
another principal office.
Section 3.3 Purpose. The exclusive purposes and functions of the Trust are
-------
(a) to issue and sell Securities, including, from time to time, Tranches
thereof, and use the gross proceeds from such sales to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Trust Preferred Securities or Common Securities or the Beneficial
Owners will take any position for United States federal income tax purposes
which is contrary to the classification of the Trust as a grantor trust.
Section 3.4 Authority. Subject to the limitations provided in this Trust
---------
Agreement and to the specific duties of the Property Trustee, the Administrative
Trustees shall have exclusive authority to carry out the purposes of the Trust.
An action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Trust Agreement.
(a) Except as expressly set forth in this Trust Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6(b), provided, that the
registration statements referred to in Section 3.6(b)(ii), including any
amendments thereto, shall be signed by or on behalf of a majority of the
Administrative Trustees; and
(c) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
13
Section 3.5 Title to Property of the Trust. Except as provided in Section
------------------------------
3.8 with respect to the Debentures and the Property Account or as otherwise
provided in this Trust Agreement, legal title to the Trust Property shall be
vested in the Trust. The Holders shall not have legal title to any part of the
assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Trust and the holders of the Securities.
Section 3.6 Powers and Duties of the Administrative Trustees. The
------------------------------------------------
Administrative Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) issue and sell the Trust Preferred Securities (including, from time to
time, Tranches thereof) and the Common Securities (including, from time to time,
Tranches thereof) in accordance with this Trust Agreement; provided, however,
that the Trust may issue no more than one series of Trust Preferred Securities
and no more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities; and the
issuance of Securities (including Tranches) shall be limited to simultaneous
issuances of both Trust Preferred Securities and Common Securities on each
Closing Date.
(b) in connection with each issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by the Sponsor, to
the New York Stock Exchange or any other national stock exchange or
automated quotation system for listing (if necessary) of any Trust
Preferred Securities, the Guarantee and the Debentures;
(ii) execute and file with the Commission one or more
registration statements on the applicable forms prepared by the
Sponsor, including any amendments thereto, pertaining to the Trust
Preferred Securities, the Guarantee and the Debentures; and
(iii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary, in order
to qualify or register all or part of the Trust Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Trust Preferred Securities for sale;
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements providing for the
sale of the Trust Preferred Securities.
(c) to acquire the Debentures with the proceeds of each sale of the Trust
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the
14
benefit of the Holders of the Trust Preferred Securities and the Holders of the
Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Administrative Trustees
shall consult with the Sponsor before taking or refraining from taking any
action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Trust Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of this Trust Agreement and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless, pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Administrative Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
15
(o) to take any action, not inconsistent with applicable law, that the
Administrative Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Administrative Trustees, on behalf of the
Trust;
(q) to execute and deliver all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing; and
(r) to cause to be delivered to the Property Trustee an Officers'
Certificate with respect to each issuance of a Tranche of Securities.
The Administrative Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
---------------------------------------------------- -
(a) The Trust shall not, and none of the Trustees (including the Property
Trustee) shall cause the Trust to, engage in any activity other than as required
or authorized by this Trust Agreement. In particular, the Trust shall not and
none of the Trustees (including the Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Trust Agreement and of the
Securities;
16
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans other than loans represented by the
Debentures or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust Property;
(vi) possess any power or otherwise act in such a way as to vary
the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of
the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Trust Agreement or by the
terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Indenture Trustee
with respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Debentures shall
be due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent
shall be required unless the Trust shall have received an opinion of
counsel to the effect that such amendment or modification will not
cause more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment
Company Act, or the Trust will not be classified as a grantor trust
for United States federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust as
a grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by vote
of the Holders of the Trust Preferred Securities except pursuant to a
subsequent vote of the Holders of the Trust Preferred Securities.
Section 3.8 Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee for the benefit of the Trust and the Holders
of the Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
17
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Administrative Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and make payments to the Holders of
the Trust Preferred Securities and Holders of the Common Securities
from the Property Account in accordance with Section 7.2. Funds in the
Property Account shall be held uninvested until disbursed in
accordance with this Trust Agreement. The Property Account shall be an
account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Trust Preferred Securities by a "nationally recognized
statistical rating organization", within the meaning of Rule 436(g)(2)
under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Trust Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of a Special
Event.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement and the Securities.
(e) Subject to Section 3.9(a) the Property Trustee may take any Legal
Action which arises out of or in connection with a Trust Enforcement Event of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Trust Agreement or the
Trust Indenture Act; provided, however, if the Property Trustee fails to enforce
its rights under this Trust Agreement or the Indenture to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, then a Holder of Trust Preferred Securities may directly institute a
proceeding against the Debenture Issuer to enforce the Property Trustee's rights
under this Trust Agreement or the Indenture without first instituting a legal
proceeding against the Property Trustee or any other person; provided, further,
that if a Trust Enforcement Event has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest,
principal or other required payments on the Debentures on the date such
interest, principal or other required payments are otherwise payable (or in the
case of redemption, on the redemption date), then a Holder of Trust Preferred
18
Securities may directly institute a proceeding against the Debenture Issuer for
enforcement of payment to such Holder of the principal of or interest on
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Trust Preferred Securities of such Holder (a "Direct Action") on or after
the respective due date specified in the Debentures. Notwithstanding anything to
the contrary in this Trust Agreement or the Indenture, the Debenture Issuer
shall have the right to set-off any payment it is otherwise required to make
under the Indenture in respect of any Trust Preferred Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Trust Preferred
Security or under Section 6.2 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee occurs and is continuing, the Property Trustee may, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Trust Agreement
and the terms of the Securities.
(h) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Trust Enforcement
Event and after the curing of all Trust Enforcement Events that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Trust Agreement and no implied covenants shall be read into this
Trust Agreement against the Property Trustee. In case a Trust Enforcement Event
has occurred (that has not been cured or waived pursuant to Section 2.6) of
which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Trust Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
19
(b) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement Events that
may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust
Agreement and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Trust Agreement, and no implied
covenants or obligations shall be read into this Trust Agreement
against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically required
to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it, in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Trust Agreement or indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to
it;
(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the
Property Account shall be to deal with such property in a similar
manner as the Property Trustee
20
deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Sponsor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for any default or misconduct of
the Administrative Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
----------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
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, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration
thereof;
21
(v) the Property Trustee may consult with counsel of its choice
or other experts and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion, such counsel may be counsel to the Property Trustee or the
Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against
the costs, expenses (including reasonable attorneys' fees and expenses
and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Property Trustee;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Securities
as would been entitled to direct the Property
22
Trustee under the terms of the Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement;
(xii) the Property Trustee shall not be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or
willful misconduct of the Property Trustee.;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property Trustee
incurs expenses or renders services in connection with a bankruptcy,
such expenses (including the reasonable fees and expenses of its
counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law
relating to creditors rights generally;
(xiv) the Property Trustee shall not be charged with knowledge of
a Trust Enforcement Event unless a Responsible Officer of the Property
Trustee obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from Holders holding more than a
Majority in Liquidation Amount of the Trust Preferred Securities; and
(b) No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 3.11 Delaware Trustee. Notwithstanding any other provision of this
----------------
Trust Agreement other than Section 6.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Administrative Trustees or the Property
Trustee described in this Trust Agreement. Except as set forth in Section 6.2,
the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807(a) of the Business Trust Act. In the
event the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder with respect to the Trust, the Delaware Trustee shall
be entitled to all of the same rights as the Property Trustee listed in Section
3.9(b) and Section 3.10. No implied covenants or obligations shall be read into
this Trust Agreement against the Delaware Trustee. It is expressly understood
and agreed by the parties hereto that in fulfilling its obligations as Delaware
Trustee hereunder on behalf of the Trust (i) any agreements or instruments
executed and delivered by Chase
23
Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are
executed and delivered not in its individual capacity but solely as Delaware
Trustee under this Trust Agreement in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements by Chase
Manhattan Bank USA, National Association, or any Successor Delaware Trustee, in
its individual capacity but is made and intended for the purpose of binding only
the Trust, and (iii) under no circumstances shall Chase Manhattan Bank USA,
National Association, or any Successor Delaware Trustee, in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Trust Agreement, except if such breach or failure is due to any gross negligence
or willful misconduct of the Delaware Trustee.
Section 3.12 Execution of Documents. Unless otherwise determined by the
----------------------
Administrative Trustees, and except as otherwise required by the Business Trust
Act or applicable law, any Administrative Trustee is authorized to execute on
behalf of the Trust any documents that the Administrative Trustees have the
power and authority to execute pursuant to Section 3.6; provided that, the
registration statements referred to in Section 3.6(b)(ii), including any
amendments thereto, shall be signed by or on behalf of a majority of the
Administrative Trustees.
Section 3.13 Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained in this Trust Agreement and the Securities shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Trust Agreement, the
Securities, the Debentures or the Indenture.
Section 3.14 Duration of Trust. The Trust shall exist until terminated
-----------------
pursuant to the provisions of Article 8 hereof.
Section 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the consent of
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
24
(A) expressly assumes all of the obligations of the Trust
with respect to the Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Securities"), as determined
by the Sponsor, so long as the Successor Securities rank the same
as the Trust Preferred Securities rank in priority with respect
to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) if the Trust is not the successor Entity, the Sponsor
expressly appoints a trustee of such Successor Entity that possesses
the same powers and duties as the Property Trustee as the holder of
the Debentures;
(iii) the Trust Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with
any other organization on which the Trust Preferred Securities are
then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust Preferred
Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Preferred
Securities (including any Successor Securities) in any material
respect; other than with respect to any dilution of the Holders'
interest in the new entity;
(vi) such Successor Entity has a purpose substantially identical
to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has received an
opinion of independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Trust
Preferred Securities (including any Successor Securities) in any
material respect; other than with respect to any dilution of the
Holders' interest in the new entity;
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor
the Successor Entity will be required to register as an
Investment Company; and
25
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to
be classified as a grantor trust for United States federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities and guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Guarantee;
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees; and
(x) the obligations of the Trust assumed by such Successor
Entity or the Successor Securities, as the case may be, shall be the
legal, valid and binding obligations of such Successor Entity
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate Liquidation Amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if, in the opinion of a nationally recognized tax
counsel experienced in such matters, such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
Section 3.16 Property Trustee May File Proofs of Claim. In case of the
-----------------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Trust or any other obligor upon the Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions on the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the Liquidation Amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
26
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor. In connection with the issue
-------------------------------
and sale of the Trust Preferred Securities (including, from time to time,
Tranches thereof), the Sponsor shall have the exclusive right and responsibility
to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Trust
Preferred Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Trust Preferred Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) if deemed necessary by the underwriter of the Trust Preferred
Securities, to prepare for filing by the Trust an application to The New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq Stock
Market for listing upon notice of issuance of any Trust Preferred Securities,
the Guarantee and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the Trust an
underwriting agreement and other related agreements providing for each sale of
the Trust Preferred Securities.
Section 4.2 Fees and Expenses of the Trustees. The Sponsor, in its capacity
---------------------------------
as Debenture Issuer, agrees
27
(a) to pay to the Property Trustee and the Delaware Trustee from time to
time such compensation as shall be agreed in writing with the Sponsor for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee upon request
for all reasonable expenses, disbursements and advances incurred or made by such
Trustee in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of their
duly authorized agents and counsel), except any such expense, disbursement or
advance as may be attributable to their gross negligence or bad faith.
The provisions of this Section 4.2 shall survive the resignation or removal
of the Delaware Trustee or the Property Trustee or the termination of this Trust
Agreement.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common Securities. In accordance
------------------------------------------------
with Section 7.1(a), on each Closing Date, the Debenture Issuer will purchase
all of the Common Securities issued by the Trust on such Closing Date, for an
amount at least equal to 3% of the capital of the Trust at such time, at the
same time as Trust Preferred Securities issued on such Closing Date are sold.
The aggregate stated Liquidation Amount of Common Securities outstanding at
any time shall not be less than 3% of the capital of the Trust.
Section 5.2 Covenants of the Common Securities Holder. For so long as the
-----------------------------------------
Trust Preferred Securities remain outstanding, the Common Securities Holder will
covenant (i) to maintain, directly or indirectly, 100% ownership of the Common
Securities, (ii) to cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Trust Agreement, (iii) to use its commercially reasonable
efforts to ensure that the Trust will not be an investment company for purposes
of the Investment Company Act, and (iv) to take no action which would be
reasonably likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes.
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees. The number of Trustees initially shall be
------------------
four, and:
(a) at any time before the initial issuance of Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
28
(b) after the initial issuance of Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(i) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (ii) at least one
Administrative Trustee is an employee or officer of, or is affiliated with, the
Sponsor; and (iii) one Trustee shall be the Property Trustee for so long as this
Trust Agreement is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
Section 6.2 Delaware Trustee; Eligibility. If required by the Business
-----------------------------
Trust Act, one Trustee (which may be the Property Trustee) (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
Section 6.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee (which may be the Delaware
Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 6.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 6.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 6.6(c).
29
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (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.
(d) The Amended and Restated Trust Agreements of ▇▇▇▇▇▇ Capital Trust I
dated _____ __, 199_, among the Sponsor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
and the Administrators named therein, and the Trust Preferred Securities
Guarantee Agreements dated as of _____ __, 199_, between the Sponsor and The
Chase Manhattan Bank, as Guarantee Trustee shall be deemed to be specifically
described in this Trust Agreement for purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section 6.4 Qualifications of Administrative Trustees and Delaware Trustee
--------------------------------------------------------------
Generally. Each Administrative Trustee and the Delaware Trustee (unless the
---------
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
Section 6.5 Initial Administrative Trustees. The initial Administrative
-------------------------------
Trustees shall be: ___________ and __________, the business address of each of
whom is c/o Markel Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
Section 6.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 6.6(b), Trustees may be appointed or removed with or
without cause at any time:
(i) until the initial issuance of Securities, by written
instrument executed by the Sponsor;
(ii) after the initial issuance of Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities or by
written consent in lieu of such meeting; and;
(iii) after the initial issuance of the Trust Preferred
Securities and the occurrence of an Indenture Event of Default, by
vote of the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities; provided, however, that the Administrative
Trustees may still be appointed or removed with or without cause in
such circumstance, by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities or by written consent in lieu of such
meeting; and;
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such
30
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Administrative Trustees and the Sponsor. The Trustee that
acts as Delaware Trustee shall not be removed in accordance with Section 6.6(a)
until a successor Trustee possessing the qualifications to act as Delaware
Trustee under Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Delaware Trustee and delivered to the Administrative Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as the
case may be, shall have been appointed and accepted appointment as provided in
this Section 6.6 within 60 days after delivery to the Sponsor and the Trust of
an instrument of resignation or removal, the resigning or removed Property
Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
31
Section 6.7 Vacancies among Trustees. If a Trustee ceases to hold office
------------------------
for any reason and the number of Trustees is not reduced pursuant to Section
6.1, or if the number of Trustees is increased pursuant to Section 6.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance with
Section 6.6.
Section 6.8 Effect of Vacancies. The death, resignation, retirement,
-------------------
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 6.6, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 6.9 Meetings. If there is more than one Administrative Trustee,
--------
meetings of the Administrative Trustees shall be held from time to time upon the
call of any Administrative Trustee. Regular meetings of the Administrative
Trustees may be held at a time and place fixed by resolution of the
Administrative Trustees. Notice of any in-person meetings of the Administrative
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Administrative Trustees
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Trust Agreement, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
Section 6.10 Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or
32
otherwise as the Administrative Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with such Trustee may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 7
TERMS OF SECURITIES
Section 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of Trust Preferred Securities representing undivided beneficial interests
in the assets of the Trust and one class of Common Securities representing
undivided beneficial interests in the assets of the Trust.
(i) Trust Preferred Securities. On the initial Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the underwriters named in the underwriting agreement
relating to such Trust Preferred Securities, a Trust Preferred
Securities Certificate or Certificates, registered in the name of the
initial Depositary or its nominee, in an initial aggregate amount of
______ Trust Preferred Securities against receipt of the purchase
price specified in the underwriting agreement. The Trust Preferred
Securities issued on the initial Closing Date shall have an aggregate
Liquidation Amount with respect to the assets of the Trust of
_________ dollars ($_________). Pursuant to the procedures established
in an Officers' Certificate, the Trust may subsequently issue from
time to time Tranches of Trust Preferred Securities. The Trust
Preferred Securities and any subsequent Tranches thereof are hereby
designated for identification purposes only as "▇▇▇▇▇▇ Capital Trust
II __% Trust Preferred Securities" (the "Trust Preferred Securities").
The Trust Preferred Security Certificates evidencing the Trust
Preferred Securities shall be substantially in the form of Exhibit A
to this Trust Agreement, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange or quotation
system on which the Trust Preferred Securities are listed or quoted.
(ii) Common Securities. On the initial Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the Sponsor Common Securities Certificates, registered in
the name of the Sponsor, in an initial aggregate amount of _____
Common Securities against payment by the Sponsor of ________ dollars
($________). The Common Securities issued on the initial
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Closing Date shall have an initial aggregate Liquidation Amount with
respect to the assets of the Trust of ___________ dollars ($_______).
Pursuant to the procedures established in an Officers' Certificate,
the Trust may subsequently issue from time to time Tranches of Common
Securities. The Common Securities and any subsequent Tranches thereof
are hereby designated for identification purposes only as "▇▇▇▇▇▇
Capital Trust II __% Common Securities" (the "Common Securities" and,
together with the Trust Preferred Securities, the "Securities"). The
Common Security Certificates evidencing the Common Securities shall be
substantially in the form of Exhibit B to this Trust Agreement, with
such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
(iii) On the initial Closing Date, an Administrative Trustee, on
behalf of the Trust, shall subscribe for and purchase from the Sponsor
Debentures, registered in the name of the Property Trustee, on behalf
of the Trust and the Holders and having an initial aggregate principal
amount equal to __________ dollars ($_________). To the extent
subsequent Tranches of Securities are issued, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from
the Sponsor on subsequent Closing Dates additional Debentures,
registered in the name of the Property Trustee, on behalf of the Trust
and the Holders having an aggregate principal amount equal to the
aggregate Liquidation Amount of such Tranches of Securities.
(b) Payment of Distributions on, and payment of the Redemption Price upon a
redemption of, the Trust Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the Liquidation Amount of such Trust
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Trust Preferred Securities for
all Distribution periods terminating on or prior thereto, or, in the case of
amounts payable on redemption, the full amount of the Redemption Price for all
of the outstanding Trust Preferred Securities then called for redemption, shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or the Redemption Price of, the Trust Preferred Securities then due and payable.
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Trust Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by an
Administrative Trustee. Such signature shall be the manual or facsimile
signature of any present or any future Administrative Trustee. In case an
Administrative Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such an Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such an Administrative Trustee; and any Certificate may be
signed on behalf of the Trust by any person who, at the actual date of
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execution of such Certificate, shall be an Administrative Trustee of the Trust,
although at the date of the execution and delivery of the Trust Agreement such
person was not such an Administrative Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by an Administrative
Trustee's execution thereof, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange or quotation
system on which Securities may be listed or quoted, or to conform to usage.
A Certificate representing Trust Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Trust Agreement.
The Trust Preferred Security Certificates shall be dated their date of
authentication.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee shall (i) concurrently with the initial issuance of the
Securities, authenticate the Certificates representing Trust Preferred
Securities for original issue to be issued at that time and (ii) concurrently
with each periodic issuance of Tranches, evidence the current number of
outstanding Trust Preferred Securities by endorsing Schedule A to each
Certificate therefor.
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for each issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Except to the extent set forth in Section 9.1(b), upon each issuance of
the Securities as provided in this Trust Agreement, the Securities so issued
shall be deemed to be validly issued, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust.
(f) Every Person, by virtue of having become a Holder or a Trust Preferred
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement and the terms of the Securities, the
Guarantee, the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or similar
rights.
(h) To the extent the Trust issues additional Tranches, (A) the Property
Trustee shall (i) increase the number of Trust Preferred Securities evidenced by
each Certificate therefor by adjusting its books and records to reflect the
increase in the aggregate outstanding amount and (ii) instruct the Depositary to
credit the account of the purchaser of the Tranche of Trust
35
Preferred Securities and (B) an Administrative Trustee shall increase the
number of Common Securities evidenced by each Certificate therefor by
[appropriate endorsement on Schedule A to each such Certificate][adjusting its
books and records to reflect the increase in the aggregate outstanding amount].
Section 7.2 Distributions.
-------------
(a) Holders of Securities shall be entitled to receive cumulative cash
Distributions at the rate per annum of __% of the stated Liquidation Amount of
$1,000 per Security. The amount of Distributions payable for any period shall be
computed on the basis of a [360-day year of twelve 30-day months]. The amount of
Distributions payable for any period shorter than a full semi-annual
distribution period shall be computed on the basis of a [30-day month and for
periods of less than a month, the actual number of days elapsed per 30-day
month]. Subject to Section 7.1(b), Distributions shall be made on the Trust
Preferred Securities and the Common Securities on a Pro Rata basis. Except in
the event that the Sponsor exercises its right to extend the interest payment
period for the Debentures pursuant to Article IV of the _________ Supplemental
Indenture (an "Exclusion Period"), Distributions on the Securities shall, from
the date of original issue, accrue and be cumulative and shall be payable
semi-annually, in arrears, on the ___ day of each _____ and _____, commencing
________, when, as and if available for payment, by the Property Trustee, except
as otherwise described below. Distributions are payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will accumulate
and compound (including interest payable on unpaid interest at the percentage
rate per annum set forth above, to the extent permitted by applicable law)
semi-annually at the rate of __% per annum ("Compounded Distributions").
"Distributions" shall mean ordinary cumulative distributions together with any
Compounded Distributions or any payment of Additional Tax Sums.
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debentures held by the Property
Trustee or any payment of Additional Tax Sums (the amount of any such payments
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a Pro Rata distribution of
the Payment Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders thereof
as they appear on the register of the Trust as of the close of business on the
relevant record dates. While the Trust Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Debentures. The relevant record dates
for the Common Securities shall be the same as for the Trust Preferred
Securities. If the Trust Preferred Securities shall not continue to remain
represented by one or more Global Securities, the relevant record dates for the
Trust Preferred Securities shall be selected by the Administrative Trustees and
shall be more than 14 days but no less than 60 days prior to the relevant
payment dates. At
36
all times, the Distribution payment dates shall correspond to the interest
payment dates on the Debentures. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, shall
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined with respect to the
related interest payment date pursuant to the Indenture. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding day which
is a Business Day, in each case with the same force and effect as if made on
such payment date.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
Section 7.3 Redemption of Securities.
------------------------
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption or acceleration as provided in the Indenture, the
proceeds from such repayment or redemption shall be simultaneously applied Pro
Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed at the Redemption Price. Holders shall be given not less than
20 nor more than 60 days notice of such redemption in accordance with Section
7.4.
(b) On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Securities will no longer be deemed to be outstanding and
(ii) certificates representing Securities will be deemed to represent the
Debentures having an aggregate principal amount equal to the stated Liquidation
Amount of, and bearing accrued and unpaid interest equal to accrued and unpaid
distributions on, such Securities until such certificates are presented to the
Sponsor or its agent for transfer or reissuance.
(c) Certificates called for redemption in whole must be surrendered to the
Paying Agent in order to receive payment of the Redemption Price.
Section 7.4 Redemption Procedures.
---------------------
(a) Notice of any redemption of, or notice of distribution of Debentures in
exchange for, the Securities (a "Redemption/Distribution Notice"), which notice
shall be irrevocable, will be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged not fewer than 20 nor more than 60 days
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of or the date of final
maturity of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 7.4(a), a
37
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Trust Preferred Securities will be redeemed Pro Rata
(subject to Section 7.1(b)) and the Trust Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Security redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount of Trust
Preferred Securities which has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements set forth
in Section 7.4(a) above, if Securities are to be redeemed, then (i) with respect
to Trust Preferred Securities represented by one or more Global Securities, by
2:00 p.m., New York City time, on the redemption date (provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of
immediately available funds in connection with the related redemption or
maturity of the Debentures), the Property Trustee will deposit irrevocably with
the Depositary or its nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Redemption Price with respect to the
Trust Preferred Securities and will give the Depositary irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Trust Preferred
Securities and (ii) with respect to Securities not represented by one or more
Global Securities (provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of immediately available funds in connection with
the related redemption or maturity of the Debentures), the Paying Agent will pay
the relevant Redemption Price to the Holders of such Securities by check mailed
to the address of the relevant Holder appearing on the register of the Trust on
the redemption date. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to the
Guarantee, Distributions on such Securities will continue to accrue at the then
applicable rate from the original redemption date to the actual date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price. For these purposes,
the applicable Redemption Price shall not include Distributions which are being
paid to Holders who were Holders on a relevant record date. If a
Redemption/Distribution Notice shall have been given and funds deposited or paid
as required, then immediately prior to the close of business on the date of such
deposit or payment, Distributions will cease to accrue on the Securities called
for redemption and all rights of Holders of such Securities so called for
redemption will cease,
38
except the right of the Holders to receive the Redemption Price, but without
interest on such Redemption Price, and from and after the date fixed for
redemption, such Securities will cease to be outstanding.
Neither the Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Trust Preferred Securities.
-------------------------------------------
(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Trust Preferred Securities shall have no
voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Trust Preferred Securities voting
separately as a class have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Trust Agreement, including the right to direct the Property Trustee,
as Holder of the Debentures, to (i) exercise the remedies available to it under
the Indenture as a Holder of the Debentures; (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent shall be
required (iii) waive any past default and its consequences that is waiveable
under Section 6.6 of the Indenture or (iv) cancel an acceleration of the
principal of the Debentures; provided, however, that if an Indenture Event of
Default has occurred and is continuing, then the Holders of 33% of the aggregate
Liquidation Amount of the Trust Preferred Securities may direct the Property
Trustee to declare the principal of and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated Liquidation Amount of the Trust Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action; provided, further, that (subject to the provisions of Section 3.9) the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee shall determine that the action so directed would be
unjustly prejudicial to the Holders of Trust Preferred Securities not taking
part in such direction or if the Property Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Property Trustee, in good faith, by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees,
and/or Responsible Officers, shall determine that the action or proceeding so
directed would involve the Property Trustee in personal liability.
39
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Trust Preferred Securities has made a written
request, such Holder of Trust Preferred Securities may, to the extent permitted
by applicable law, institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Trust Preferred Securities may directly institute a Direct
Action against the Debenture Issuer on or after the respective due date
specified in the Debentures.
(d) Subject to Section 2.7, the Property Trustee shall notify all Holders
of the Trust Preferred Securities of any notice of any Indenture Event of
Default received from the Debenture Issuer with respect to the Debentures. Such
notice shall state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and place
of conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clauses 7.5(b)(i) and (ii)
above unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes as a result of such action,
and each Holder will be treated as owning an undivided beneficial ownership
interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by not
less than a Majority in Liquidation Amount of the Securities voting together as
a single class; provided, however, that where a consent under the Indenture
would require the consent of the Holders of more than a majority of the
aggregate principal amount of the Debentures, the Property Trustee may only give
such consent at the direction of the Holders of at least the same proportion in
aggregate stated Liquidation Amount of the Securities. The Property Trustee
shall not take any such action in accordance with the directions of the Holders
of the Securities unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes as a
result of such action, and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Trust Preferred
Securities may be given at a separate meeting of Holders of Trust Preferred
Securities convened for such purpose, at a meeting of both the Holders of Common
Securities and the Holders of Trust Preferred Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holders of Trust Preferred Securities are entitled to vote to be mailed to each
Holder of record of Trust Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed
40
for adoption at such meeting on which such Holders are entitled to vote and
(iii) instructions for the delivery of proxies.
(h) No vote or consent of the Holders of Trust Preferred Securities shall
be required for the Trust to redeem and cancel Trust Preferred Securities or
distribute Debentures in accordance with this Trust Agreement and the terms of
the Securities.
(i) Notwithstanding that Holders of Trust Preferred Securities
are entitled to vote or consent under any of the circumstances described above,
any of the Securities that are owned at such time by the Debenture Issuer, any
Administrative Trustee or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Debenture Issuer or any
Administrative Trustee, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Securities were not
outstanding; provided, however, that persons otherwise eligible to vote to whom
the Debenture Issuer or any of its subsidiaries have pledged Trust Preferred
Securities may vote or consent with respect to such pledged Trust Preferred
Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidation
Amount of the Common Securities to appoint or remove Administrative Trustees as
provided in Section 6.6(a)(iii), if an Indenture Event of Default has occurred
and is continuing, the Trustees may be removed at such time only by a Majority
in Liquidation Amount of the Trust Preferred Securities.
Section 7.6 Voting Rights of Common Securities.
----------------------------------
(a) Except as provided under Section 6.1(b), this Section 7.6 or Section
11.1 or as otherwise required by the Business Trust Act, the Trust Indenture Act
or other applicable law or provided by the Trust Agreement, the Holders of the
Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article 6 of this Trust
Agreement, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events with
respect to the Trust Preferred Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures, (ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent shall be required or (iii) waive any past
default and its
41
consequences that is waivable under Section 6.6 of the Indenture; provided,
however, that where a consent or action under the Indenture would require the
consent or act of the Holders of more than a majority of the aggregate principal
amount of Debentures affected thereby, only the Holders of the percentage of the
aggregate stated Liquidation Amount of the Common Securities which is at least
equal to the percentage required under the Indenture may direct the Property
Trustee to have such consent or take such action; provided, further, that
(subject to the provisions of Section 3.9) the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee shall
determine that the action so directed would be unjustly prejudicial to the
Holders of Common Securities not taking part in such direction or if the
Property Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Property Trustee, in
good faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible officers, shall
determine that the action or proceeding so directed would involve the Property
Trustee in personal liability. Except with respect to directing the time,
method, and place of conducting a proceeding for a remedy, the Property Trustee
shall be under no obligation to take any of the actions described in clauses
7.6(c)(i) and (ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for
United States federal income tax purposes the Trust will not fail to be
classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debentures in accordance with the Trust Agreement and the terms of the
Securities.
Section 7.7 Paying Agent. The Trust shall maintain in the Borough of
------------
Manhattan, City of New York, State of New York, an office or agency where the
Trust Preferred Securities may be presented for payment ("Paying Agent"). The
Trust may appoint the Paying Agent and may appoint one or more additional Paying
Agents in such other locations as it shall determine. The term "Paying Agent"
includes any additional Paying Agent. The Trust may change any
42
Paying Agent without prior notice to the Holders. The Trust shall notify the
Property Trustee of the name and address of any Paying Agent not a party to this
Trust Agreement. If the Trust fails to appoint or maintain another entity as
Paying Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Property Trustee shall initially act as
Paying Agent for the Securities. In the event the Property Trustee shall no
longer be the Paying Agent, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company acceptable to the Debenture
Issuer) to act as Paying Agent. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Debenture Issuer.
Section 7.8 [INTENTIONALLY OMITTED]
Section 7.9 Transfer of Securities.
----------------------
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Trust Agreement and in the terms
of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Trust
Agreement shall be null and void.
(b) (i) Subject to this Article 7, Trust Preferred Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the Common
Securities except (A) in compliance with a consolidation, merger, sale,
conveyance or lease of the Sponsor in compliance with Article XI of the
Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with
applicable law, including the Securities Act and applicable state
securities and blue sky laws. To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office of the
Property Trustee a register (the register maintained in such office being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Trust Preferred Securities and of transfers of Trust Preferred
Securities. The Property Trustee is hereby appointed "Security Registrar" for
the purpose of registering Trust Preferred Securities and transfers of Trust
Preferred Securities as herein provided.
(d) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and in the case of Trust Preferred Securities the Property Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and in the case of Trust Preferred Securities the Property
43
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Trust or the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall not be
required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates. If:
-------------------------------------------------
(a) any mutilated Certificates should be surrendered to the Administrative
Trustees or the Property Trustee, or if the Administrative Trustees and the
Property Trustee shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Administrative Trustees and the
Property Trustee such security or indemnity as may be required by them to keep
each of the Trustees, the Sponsor and the Trust harmless, then, in the absence
of notice that such Certificate shall have been acquired by a protected
purchaser, any Administrative Trustee on behalf of the Trust shall execute and
deliver and, with respect to Trust Preferred Securities Certificates, the
Property Trustee shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination.
In connection with the issuance of any new Certificate under this Section
7.10, the Administrative Trustees 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed 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 of mutilated, destroyed, lost or stolen
Certificates.
Section 7.11 Deemed Security Holders. The Trustees may treat the Person in
-----------------------
whose name any Certificate shall be registered on the register of the Trust as
the sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving
44
Distributions (subject to Section 7.2(d)) and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 7.12 Global Securities. The Trust Preferred Securities may be
-----------------
issued in the form of one or more Global Securities. If the Trust Preferred
Securities are to be issued in the form of one or more Global Securities, then
an Administrative Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
Liquidation Amount of all of the Trust Preferred Securities to be issued in the
form of Global Securities and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary, and (iii) shall be delivered by the Property Trustee to such
Depositary or pursuant to such Depositary's instructions. Global Securities
shall bear a legend substantially to the following effect:
"This Trust Preferred Security is a Global Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Trust Preferred
Security is exchangeable for Trust Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of
this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Trust Preferred Security Certificate is presented by an
authorized representative of the Depositary to ▇▇▇▇▇▇ Capital Trust II or
its agent for registration of transfer, exchange or payment, and any Trust
Preferred Security Certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depositary),
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 Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Trust Preferred
Securities not represented by a Global Security to the Persons in whose names
such definitive Trust Preferred Securities are so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or cancelled, such Global Securities shall be, upon receipt thereof,
cancelled by the Property
45
Trustee in accordance with standing procedures of the Depositary. At any time
prior to such cancellation, if any interest in Global Securities is exchanged
for Trust Preferred Securities not represented by a Global Security, redeemed,
cancelled or transferred to a transferee who receives Trust Preferred Securities
not represented by a Global Security therefor or any Trust Preferred Security
not represented by a Global Security is exchanged or transferred for part of
Global Securities, the principal amount of such Global Securities shall, in
accordance with the standing procedures of the Depositary, be reduced or
increased, as the case may be, and an endorsement shall be made on such Global
Securities by the Property Trustee to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Trust Preferred Securities, deal with the
Depositary as the authorized representative of the Holders for the purposes of
exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established
by law and agreements between such owners and depository participants provided,
that no such agreement shall give any rights to any Person against the Trust or
the Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Trust Preferred Securities in global form with respect to any particular matter
shall not be deemed inconsistent to the extent they do not represent an amount
of Trust Preferred Securities in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Trust Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Trust Preferred
Securities or if at any time the Depositary for such Trust Preferred Securities
shall no longer be eligible to act as such under the Exchange Act, the Trust
shall appoint a successor Depositary with respect to such Trust Preferred
Securities. If a successor Depositary for such Trust Preferred Securities is not
appointed by the Trust within 90 days after the Trust receives such notice or
becomes aware of such ineligibility, the Trust's election that such Trust
Preferred Securities be represented by one or more Global Securities shall no
longer be effective and the Trust shall execute, and the Property Trustee will
authenticate and deliver, Trust Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate Liquidation Amount equal
to the principal amount of the Global Security representing such Trust Preferred
Securities in exchange for such Global Security.
The Trust may at any time and in its sole discretion determine that the
Trust Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security. In such event the Trust
shall execute, and the Property Trustee, shall authenticate and deliver, Trust
Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate Liquidation Amount equal to the principal amount
of the Global Security representing such Trust Preferred Securities, in exchange
for such Global Security.
Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary
46
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
Subject to the limitations set forth in the three preceding paragraphs,
interests of beneficial owners in a Global Security may be transferred or
exchanged for Trust Preferred Securities not represented by a Global Security
and Trust Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
Section 7.13 [INTENTIONALLY OMITTED]
---------------------
Section 7.14 Cancellation. All Certificates surrendered for payment,
------------
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Property Trustee, be delivered to the Property Trustee and
shall be promptly cancelled by it. No Certificates shall be executed or
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as permitted by this Trust Agreement. All
cancelled Certificates held by the Property Trustee shall be disposed of by it
in accordance with its customary procedures.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
------------------------------------
(a) The Trust shall dissolve upon the earliest of:
(i) a Bankruptcy Event of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the dissolution of
the Trust after obtaining the consent of the Holders of at
least a Majority in Liquidation Amount of the Securities to
dissolve the Trust; or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of
the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall have been
paid to the Holders in accordance with the terms of the
Securities;
(v) at the Sponsor's election by notice and direction
to the Property Trustee to distribute the Debentures to the
Holders of the Securities in exchange for all of the
Securities; provided that the Sponsor will be required to
obtain an opinion of an independent tax counsel that the
distribution of the Debentures
47
would not result in the recognition of gain or loss for United
States federal income tax purposes by the Holders of the Trust
Preferred Securities; or
(vi) the time when all of the Administrative Trustees and
the Sponsor shall have consented to dissolution of the Trust
provided such action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing
a certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
Section 8.2 Liquidation Distribution Upon Dissolution of the Trust.
------------------------------------------------------
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders
of the Securities on the date of the Liquidation will be entitled to
receive, out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of the Trusts' liabilities to
creditors, if any, distributions in cash or other immediately available
funds in an amount equal to the aggregate of the stated Liquidation Amount
of $1,000 per Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"),
unless, in connection with such Liquidation, the Debentures shall be
distributed on a Pro Rata basis to the Holders of the Securities in
exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts
payable directly by the Trust on the Securities shall be paid on a Pro Rata
basis. The Holders of the Common Securities will be entitled to receive
distributions upon any such Liquidation Pro Rata with the Holders of the
Trust Preferred Securities except that if an Indenture Event of Default has
occurred and is continuing, the Trust Preferred Securities shall have a
preference over the Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
Section 9.1 Liability.
---------
(a) Except as expressly set forth in this Trust Agreement, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of
the Holders of the Securities which shall be made solely from
assets of the Trust; and
48
(ii) shall not be required to pay to the Trust or to any Holder
of Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Common 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; provided, however,
the Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the 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.
Section 9.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or ordinary
negligence in the case of the Property Trustee) or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has, if selected by such Indemnified Person, been selected by
such Indemnified Person with reasonable care on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
Section 9.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Trust Agreement shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
49
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
Section 9.4 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorney fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Debenture Issuer
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
50
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Trust to
procure a judgment in its favor by reason of the fact that he is or
was a Debenture Issuer Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Debenture Issuer Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Debenture Issuer Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Administrative Trustees by
a majority vote of a Quorum consisting of such Administrative Trustees
who were not parties to such action, suit or proceeding, (2) if such a
Quorum is not obtainable, or, even if obtainable, if a Quorum of
disinterested Administrative Trustees so directs, by independent legal
counsel in a written opinion, or (3) by the Holders of the Common
Securities of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Debenture
Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Debenture Issuer Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section
9.4(a). Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made
(i) by the Administrative Trustees by a majority vote of a Quorum of
disinterested Administrative Trustees, (ii) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Administrative Trustees,
counsel or the Common Security Holder at the time such determination
is made, such Debenture Issuer Indemnified Person acted in bad faith
or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Debenture Issuer Indemnified Person
51
believed or had reasonable cause to believe his conduct was unlawful.
In no event shall any advance be made in instances where the
Administrative Trustees, independent legal counsel or Common Security
Holders reasonably determine that such person deliberately breached
his duty to the Trust or its Common or Trust Preferred Security
Holders.
(v) The indemnification and advancement of expenses provided
by,or granted pursuant to, the other paragraphs of this Section 9.4(a)
shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors
of the Debenture Issuer or Trust Preferred Security Holders of the
Trust or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All rights to
indemnification under this Section 9.4(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Debenture
Issuer Indemnified Person who serves in such capacity at any time
while this Section 9.4(a) is in effect. Any repeal or modification of
this Section 9.4(a) shall not affect any rights or obligations then
existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Debenture
Issuer Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Debenture Issuer would have the power to
indemnify him against such liability under the provisions of this
Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 9.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Debenture Issuer Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators
of such a person. The obligation to indemnify as set forth in this
Section 9.4(a) shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this
Trust Agreement.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee,(ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct on its part,
arising out of or in connection with the
52
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 9.4(b) shall survive the resignation
and removal of the Delaware Trustee or the Property Trustee and the dissolution
of the Trust and the termination of this Trust Agreement. In addition, the
Debenture Issuer has agreed to pay the fees and expenses of the Delaware Trustee
and the Property Trustee. The obligations of the Debenture Issuer under this
Section 9.4(b) shall be treated as additional amounts owing under this Trust
Agreement and shall be secured by the Guarantee.
Section 9.5 Outside Businesses. Subject to the provisions of Section 6.3,
------------------
any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee
may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
activities of the Trust, and the Trust and the Holders of Securities shall have
no rights by virtue of this Trust Agreement in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or
the Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust
-----------
shall be the calendar year of the Sponsor, or such other year as is required by
the Code.
Section 10.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Administrative Trustees.
(b) [The Administrative Trustees shall cause to be prepared and delivered
to each of the Holders of Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual
53
financial statements of the Trust, including a balance sheet of the Trust as
of the end of such Fiscal Year, and the related statements of income or loss.]
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Administrative Trustees on behalf of the Trust with any state or local
taxing authority.
Section 10.3 Banking. The Trust shall maintain one or more bank accounts in
-------
the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Property Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Account.
Section 10.4 Withholding. The Trust and the Administrative Trustees shall
-----------
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Holder. In the event of any claimed over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
----------
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended by
a written instrument approved
and executed by the Sponsor and (i) the Administrative Trustees (or, if there
are more than two Administrative Trustees, a majority of the Administrative
Trustees), (ii) the Property Trustee; and (iii) the Delaware Trustee if the
amendment affects the rights, powers, duties, obligations or immunities of the
Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the Securities)
and that all conditions precedent to the execution and delivery of
such amendment have been satisfied; and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the Securities)
and that all conditions precedent to the execution and delivery of
such amendment have been satisfied; and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a grantor
trust for United States federal income tax purposes;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution required to be made in respect of the Securities as of a
specified date or (b) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such payment on or after such
date, will entitle the Holders of such Securities, voting together as a
single class, to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of each of the
Holders of the Securities affected thereby; and
(ii) any amendment that would (a) adversely affect the powers,
preferences or rights of the Securities, whether by way of amendment to
this Trust Agreement or otherwise or (b) result in the dissolution,
winding-up or termination of the Trust other than pursuant to the terms of
this Trust Agreement, will entitle
55
the holders of the Trust Preferred Securities voting together as a
single class to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a
Majority in Liquidation Amount of the Trust Preferred Securities
affected thereby; provided that, if any amendment or proposal referred
to in clause (a) above would adversely affect only the Trust Preferred
Securities or the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such amendment
or proposal.
(d) This Section 11.1 shall not be amended without the consent of all of
the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article 6 to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in Liquidation Amount
of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Trust Agreement may be amended
without the consent of the Holders of the Securities, if such amendment does not
adversely affect in any material respect the rights of the holders of the
Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust Agreement
that may be defective or inconsistent with any other provision of this
Trust Agreement or to make any other provisions with respect to
matters or questions arising under this Trust Agreement that shall not
be inconsistent with the other provisions of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or application of Rule
3a-5 of the Investment Company Act by any legislative body, court,
government agency or regulatory authority; or
(v) to modify, eliminate and add to any provision of this Trust
Agreement to ensure that the Trust will be classified as a grantor
trust for United States federal income tax purposes at all times that
any Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the Investment
Company Act.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to sign any amendment that affects its rights, duties, obligations or
immunities under this Trust Agreement or otherwise.
56
Section 11.2 Meetings of the Holders of Securities; Action by Written
--------------------------------------------------------
Consent.
--------
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Trust Agreement, the
terms of the Securities or the rules of any stock exchange or quotation system
on which the Trust Preferred Securities are listed, quoted or admitted for
trading. The Administrative Trustees shall call a meeting of the Holders of such
class if directed to do so by the Holders of at least 10% in Liquidation Amount
of such class of Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or
required under this Trust Agreement or the rules of any stock exchange
or quotation system on which the Trust Preferred Securities are
listed, quoted or admitted for trading, such vote, consent or approval
may be given at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of Securities may be
taken without a meeting and without prior notice if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
Liquidation Amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking
of action without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in writing. The
Administrative Trustees may specify that any written ballot submitted
to the Security Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by
the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing such proxy. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
57
Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that
the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Trust Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange or quotation system on which the Trust Preferred
Securities are then listed, quoted or admitted for trading, otherwise
provides, the Administrative Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee. The
------------------------------------------------------
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Trust Agreement, and each Successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a banking corporation, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Trust Agreement;
(b) the Property Trustee satisfies the requirements set forth in Section
6.3(a);
(c) the execution, delivery and performance by the Property Trustee of this
Trust Agreement has been duly authorized by all necessary corporate action on
the part of the Property Trustee. This Trust Agreement has been duly executed
and delivered by the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Trust Agreement by the
Property Trustee does not conflict with or constitute a breach of the articles
of association or
58
incorporation, as the case may be, or the by-laws (or other similar
organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State (which term, in the case of the initial Property Trustee,
shall mean the State of New York) or federal banking authority having
jurisdiction over the trust powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee of this Trust
Agreement.
Section 12.2 Representations and Warranties of the Delaware Trustee. The
------------------------------------------------------
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Trust Agreement, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in Section
6.2, satisfies Trust Section 3807 of the Business Trust Act and has the power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Trust Agreement. This Trust Agreement
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law); and
(c) no consent, approval or authorization of, or registration with or
notice to, the State of Delaware or federal banking authority is required for
the execution, delivery or performance by the Delaware Trustee of this Trust
Agreement.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices. All notices provided for in this Trust Agreement
-------
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o Markel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
59
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Administrative Trustees, the Property Trustee and the Holders of the
Securities):
Chase Manhattan Bank USA, National Association
c/o ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇/▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
(c) if given to the Property Trustee, at its Corporate Trust Office (or
such other address as the Property Trustee may give notice of to the
Administrative Trustees, the Delaware Trustee and the Holders of the
Securities).
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(e) if given to any other Holder, at the address set forth on the Security
Register.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by certified or registered
first class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
Section 13.2 Governing Law. This Trust Agreement and the rights of the
-------------
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware, provided that the immunities and standard of care
of the Property Trustee in connection with the administration of its trusts
hereunder shall be governed by and interpreted in accordance with the laws of
the jurisdiction of its incorporation.
Section 13.3 Intention of the Parties. It is the intention of the parties
------------------------
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Trust Agreement shall be
interpreted in a manner consistent with such classification.
Section 13.4 Headings. Headings contained in this Trust Agreement are
--------
inserted for convenience of reference only and do not affect the interpretation
of this Trust Agreement or any provision hereof.
60
Section 13.5 Successors and Assigns. Whenever in this Trust Agreement any
----------------------
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
Section 13.6 Partial Enforceability. If any provision of this Trust
----------------------
Agreement, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Trust Agreement, or the application
of such provision to persons or circumstances other than those to which it is
held invalid, shall not be affected thereby.
Section 13.7 Counterparts. This Trust Agreement may contain more than one
------------
counterpart of the signature page and this Trust Agreement may be executed by
the affixing of the signature of each of the Trustees and the Sponsor to one of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE
SIGNATURE PAGE FOLLOWS.]
61
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
▇▇▇▇▇▇ CORPORATION,
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By:
-------------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-------------------------------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee
By:
-------------------------------------------------------
Name:
Title:
----------------------------------------------------------
Name:
Title: Administrative Trustee
----------------------------------------------------------
Name:
Title: Administrative Trustee
62
EXHIBIT A
[IF THE TRUST PREFERRED SECURITY IS TO BE A GLOBAL TRUST PREFERRED
SECURITY, INSERT THE FOLLOWING: THIS TRUST PREFERRED SECURITY IS A GLOBAL TRUST
PREFERRED SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS TRUST
PREFERRED SECURITY IS EXCHANGEABLE FOR TRUST PREFERRED SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS
TRUST PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES. UNLESS THIS TRUST PREFERRED SECURITY CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE DEBENTURE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
TRUST PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
CERTIFICATE NO.___________ NUMBER OF TRUST PREFERRED SECURITIES: AS
SET FORTH ON SCHEDULE A HERETO
CUSIP NO._________________
CERTIFICATE EVIDENCING __% TRUST PREFERRED SECURITIES
OF
▇▇▇▇▇▇ CAPITAL TRUST II
__% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $1,000 PER TRUST PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY ▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇ CAPITAL TRUST II, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of the number of Trust Preferred Securities of
the Trust set forth on Schedule A hereto representing undivided beneficial
interests in the assets of the Trust designated the "__% Trust Preferred
Securities" (Liquidation Amount $1,000 per Trust Preferred Security) (the "Trust
Preferred Securities"). The Trust Preferred Securities are transferable on the
register of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in
A-1
proper form for transfer as provided in the Trust Agreement (as defined below).
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Preferred Securities represented hereby are issued
and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of ▇▇▇▇▇▇ Capital Trust II, dated as of ________, as
the same may be amended from time to time (the "Trust Agreement"), by and among
▇▇▇▇▇▇ Corporation, as Sponsor, ________ and __________, as Administrative
Trustees, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
USA, National Association, as Delaware Trustee and the Holders. Capitalized
terms used herein but not defined shall have the meaning given them in the Trust
Agreement. The Holder is entitled to the benefits of the Guarantee to the extent
described therein. The Sponsor will provide a copy of the Trust Agreement, the
Guarantee and the Indenture to a Holder without charge upon written request to
the Sponsor at its principal place of business. Upon acceptance of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder. By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the Trust
Preferred Securities as evidence of undivided indirect beneficial ownership
interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ______ day
of _______, ____.
▇▇▇▇▇▇ CAPITAL TRUST II
By
--------------------------------------------
Name:
Title: Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Trust Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
Dated: _____________ By
--------------------------------------------
Authorized Officer
A-2
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW.
CERTIFICATE NO.______ NUMBER OF COMMON SECURITIES: AS
SET FORTH ON SCHEDULE A HERETO
CERTIFICATE EVIDENCING __% COMMON SECURITIES
OF
▇▇▇▇▇▇ CAPITAL TRUST II
__% COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
▇▇▇▇▇▇ CAPITAL TRUST II, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that ▇▇▇▇▇▇ CORPORATION
(the "Holder") is the registered owner of the number of common securities of the
Trust set forth on Schedule A hereto representing an undivided beneficial
interest in the assets of the Trust designated the "__% Common Securities"
(Liquidation Amount $1,000 per Common Security) (the "Common Securities"). The
Common Securities are not transferable and any attempted transfer thereof shall
be void except as permitted by applicable law and by Section 7.9(b)(ii) of the
Trust Agreement (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of ▇▇▇▇▇▇ Capital
Trust II, dated as of ________ (as the same may be amended from time to time,
the "Trust Agreement"), by and among ▇▇▇▇▇▇ Corporation, as Sponsor, __________
and _________, as Administrative Trustees, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
and the Holders. The Holder is entitled to the benefits of the Guarantee to the
extent described therein. Capitalized terms used herein but not defined shall
have the meaning given them in the Trust Agreement. The Sponsor will provide a
copy of the Trust Agreement, the Guarantee and the Indenture to the Holder
without charge upon written request to the Sponsor at its principal place of
business. Upon acceptance of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder. By acceptance, the Holder
agrees to treat, for United States federal income tax purposes, the Debentures
as indebtedness and the Common Securities as evidence of an undivided indirect
beneficial ownership interest in the Debentures.
B-1
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day
of __________, ________.
▇▇▇▇▇▇ CAPITAL TRUST II
By:____________________________________
Name:
Title: Administrative Trustee
B-2
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial number of Common Securities evidenced by the Certificate to
which this Schedule is attached is ___________________. The notations on the
following table evidence increases in the number of Common Securities evidenced
by such Certificate.
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Total Number of Common
Increase in Number of Securities Outstanding Notation by Administrative
Closing Date Common Securities After Increase Trustee
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B-3