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EXHIBIT 4.14
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
OF
APACHE TRUST [I/II]
Dated as of _________________
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CROSS REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a) ................................................................................5.3(a)
310(b) ........................................................................5.3(c), 5.3(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.......................................................................................2.3
314(a) ......................................................................2.4, 2.7, 3.6(e)
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
316(b) ...................................................................................2.6
316(c) ................................................................................3.6(e)
317(a) ................................................................................3.8(h)
317(b) ........................................................................3.8(c); 7.2(a)
318....................................................................................2.1(c)
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(1) 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
Page
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ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.................................................................1
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application............................................8
Section 2.2 Lists Of Holders Of Securities..............................................9
Section 2.3 Reports By The Property Trustee.............................................9
Section 2.4 Periodic Reports To Property Trustee........................................9
Section 2.5 Evidence Of Compliance With Conditions Precedent............................9
Section 2.6 Events Of Default; Waiver..................................................10
Section 2.7 Event Of Default; Notice...................................................12
ARTICLE III.
ORGANIZATION
Section 3.1 Name.......................................................................13
Section 3.2 Office.....................................................................13
Section 3.3 Purposes...................................................................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...............................................................17
Section 3.8 Powers And Duties Of The Property Trustee..................................18
Section 3.9 Certain Duties And Responsibilities Of The Property
Trustee....................................................................20
Section 3.10 Certain Rights Of Property Trustee.........................................22
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Section 3.11 Delaware Trustee...........................................................24
Section 3.12 Not Responsible For Recitals Or Issuance Of
Securities.................................................................24
Section 3.13 Duration Of Trust..........................................................24
Section 3.14 Mergers....................................................................24
ARTICLE IV.
SPONSOR
Section 4.1 Sponsor's Purchase Of Common Securities....................................26
Section 4.2 Covenants Of The Sponsor...................................................26
Section 4.3 Rights And Responsibilities Of The Sponsor.................................26
Section 4.4 Right To Proceed...........................................................27
Section 4.5 Expenses...................................................................27
ARTICLE V.
TRUSTEES
Section 5.1 Number Of Trustees.........................................................28
Section 5.2 Delaware Trustee...........................................................29
Section 5.3 Property Trustee; Eligibility..............................................29
Section 5.4 Certain Qualifications Of Administrative Trustees
And Delaware Trustee Generally.............................................30
Section 5.5 Administrative Trustees....................................................30
Section 5.6 Appointment, Removal And Resignation Of Trustees...........................30
Section 5.7 Vacancies Among Trustees...................................................32
Section 5.8 Effect Of Vacancies........................................................32
Section 5.9 Meetings...................................................................33
Section 5.10 Delegation Of Power........................................................33
Section 5.11 Merger, Conversion, Consolidation Or Succession
To Business................................................................33
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ARTICLE VI.
DISTRIBUTIONS
Section 6.1 Distributions..............................................................34
ARTICLE VII.
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities....................................34
Section 7.2 Paying Agent and Registrar.................................................37
ARTICLE VIII.
TERMINATION OF TRUST
Section 8.1 Termination Of Trust.......................................................38
ARTICLE IX.
TRANSFER OF INTERESTS
Section 9.1 Transfer Of Securities.....................................................39
Section 9.2 Transfer or Exchange Of Certificates.......................................39
Section 9.3 Deemed Security Holders....................................................40
Section 9.4 Book Entry Interests.......................................................40
Section 9.5 Notices To Clearing Agency.................................................41
Section 9.6 Appointment Of Successor Clearing Agency...................................41
Section 9.7 Definitive Trust Preferred Security Certificates...........................41
Section 9.8 Mutilated, Destroyed, Lost Or Stolen Certificates..........................42
ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability..................................................................42
Section 10.2 Exculpation................................................................43
Section 10.3 Fiduciary Duty.............................................................43
Section 10.4 Indemnification............................................................44
Section 10.5 Outside Businesses.........................................................47
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Section 10.6 Trustees' Fees And Expenses................................................47
ARTICLE XI.
ACCOUNTING
Section 11.1 Fiscal Year................................................................47
Section 11.2 Certain Accounting Matters.................................................47
Section 11.3 Banking....................................................................48
Section 11.4 Withholding................................................................48
ARTICLE XII.
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.................................................................49
Section 12.2 Meetings Of The Holders Of Securities; Action By
Written Consent............................................................51
ARTICLE XIII.
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations And Warranties Of Property
Trustee....................................................................52
Section 13.2 Representations And Warranties Of Delaware
Trustee....................................................................53
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 Notices....................................................................54
Section 14.2 Governing Law..............................................................55
Section 14.3 Intention Of The Parties...................................................55
Section 14.4 Headings...................................................................55
Section 14.5 Successors And Assigns.....................................................55
Section 14.6 Partial Enforceability.....................................................55
Section 14.7 Entire Agreement...........................................................55
Section 14.8 Remedies...................................................................56
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Section 14.9 Counterparts...............................................................56
EXHIBIT A Terms and Conditions of Securities
EXHIBIT A-1 Form of Trust Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
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FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
OF
APACHE TRUST [I/II]
[date]
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated and
effective as of ________________, among the Trustees (as defined herein), for
the benefit of the Holders (as defined herein), and the Sponsor (as defined
herein).
WHEREAS, the Trustees and the Sponsor created Apache Trust [I/II]
(the "Trust"), a Delaware business trust under the Business Trust Act (as
defined herein), pursuant to a Trust Agreement dated as of March 13, 2000 (the
"Original Agreement"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on March 13, 2000;
WHEREAS, prior to the date hereof, no Securities (as defined
herein) have been issued);
WHEREAS, all of the Trustees and the Sponsor, by this Agreement,
intend to amend and restate each and every term and provision of the Original
Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a Delaware business trust under the Business Trust Act and
to constitute this as the governing instrument of the Trust, in consideration of
the mutual covenants herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions
Unless the context otherwise requires or unless specified in an
Exhibit hereto:
(a) each capitalized term used in this Agreement but not defined
in the preamble has the respective meaning assigned to it in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement " or "this Agreement " are
to this Agreement as modified, supplemented or amended from time to time, and
include Exhibits to this Agreement;
(d) all references in this Agreement to Articles, Sections and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Agreement unless otherwise specified;
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(e) a term defined in the Trust Indenture Act, either directly or
by reference therein, has the same meaning when used in this Agreement unless
otherwise defined in this Agreement;
(f) a reference to the singular includes the plural and vice
versa;
(g) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation;"
(h) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation; and
(i) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the meaning given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York and of general circulation in The City of New York.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than Saturday, Sunday or any
day on which banking institutions and trust companies in The City of New York
are permitted or required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Trust
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Trust Preferred Securities and in whose name or in the name of a nominee
of that organization shall be registered
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a Global Certificate and which shall undertake to effect book entry transfers
and pledges of the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency. Unless otherwise specified in the Terms and Conditions, DTC
shall be the initial Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of
Delivery", if any, under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted and existing under the Exchange Act, or, if at any
time after the execution of this instrument such commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" has the meaning set forth in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement dated
as of the date hereof and executed and delivered by the Sponsor and ____________
_______________, as trustee, for the benefit of the Holders of the Common
Securities, as such agreement may be modified, supplemented or amended from time
to time.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security, which shall be prepared by
the Sponsor and a specimen of which shall be substantially in the form attached
hereto as Exhibit A-2.
"Company Indemnified Person" means (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 of any Administrative Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee
in The City of New York at which the corporate trust business of the Property
Trustee shall, at any particular time, be principally administered, which office
at the date of execution of this Agreement is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Markets Fiduciary
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 of Securities.
"Creditor" has the meaning set forth in Section 4.5.
"Debenture Event of Default" means an event of default under the
Debentures.
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"Debenture Issuer" means Apache Corporation, a Delaware
corporation, or any successor entity, in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee" means ___________________, a ________
banking corporation as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the debt securities to be purchased by the
Trust specified in the Terms and Conditions.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" has the meaning set forth in the Terms and
Conditions.
"DTC" means The Depository Trust Company or any successor entity.
"Event of Default" means a Debenture Event of Default or any
Other Document Event of Default has occurred and is continuing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" means (a) the Property Trustee,
(b) the Delaware Trustee, (c) any Affiliate of the Property Trustee or the
Delaware Trustee, and (d) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" or "holder" means a Person in whose name a Security is
registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture specified in the Terms and
Conditions, among the Debenture Issuer and the Debenture Trustee under which the
Debentures are issued, as such indenture may be modified, supplemented or
amended from time to time, and includes any indenture supplemental thereto.
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"Investment Company" means an entity required to register as an
investment company under the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount" with respect to Securities of
any class means, except as provided elsewhere in this Agreement or by the Trust
Indenture Act, 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus any
accrued and unpaid Distributions to the date upon which the voting or written
consent percentages are determined) of all outstanding Securities of such class.
"Officers' Certificate" means, with respect to (A) the Sponsor, a
certificate signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Sponsor and (B) any other Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Agreement shall comply with Section 314 of the Trust Indenture Act and
shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individuals, such condition or covenant has been complied with.
"Other Document" means any instrument or agreement constituting
Trust Property, other than the Debentures, specified in the Terms and
Conditions.
"Other Document Event of Default" means an event of default under
any Other Document, if any, that is specified in the Terms and Conditions as an
Other Document Event of Default.
"Outstanding," with respect to any Securities, means, as of the
date of determination, all Securities theretofore executed and delivered under
this Agreement, except:
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(a) Trust Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for cancellation or Common
Securities theretofore cancelled by an Administrative Trustee or delivered to
the Administrative Trustees for cancellation;
(b) Securities for whose payment, repayment or redemption money
in the necessary amount and currency has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Securities,
provided that if such Securities are to be repaid or redeemed, notice of such
repayment or redemption has been duly given pursuant to this Agreement;
(c) Securities which have been paid or in exchange for or in lieu
of which other securities have been executed and delivered pursuant to this
Agreement; and
(d) if the Securities are convertible or exchangeable into other
securities or other property, Securities converted or exchanged as contemplated
by this Agreement if such other securities have or other property has been
either (i) delivered to the Holders of such Securities in accordance with this
Agreement or (ii) deposited with and are held by the Property Trustee or any
Paying Agent in trust for the Holders of such Securities in accordance with this
Agreement, provided in the case of this clause (ii) that any applicable notice
of conversion or exchange has been duly given to the Holders thereof pursuant to
this Agreement;
provided, however, that in determining whether the Holders of the requisite
liquidation amount of outstanding Trust Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Trust Preferred Securities owned by the Sponsor or any Administrative Trustee or
any Affiliate of the Sponsor or any Administrative Trustee shall be disregarded
and deemed not to be outstanding, except that (i) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Trust Preferred
Securities that such Trustee actually knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of the
outstanding Trust Preferred Securities are owned by the Sponsor, one or more of
the Trustees and/or any such Affiliate. Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Trust Preferred Securities and
that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Paying Agent" has the meaning set forth in Section 7.2(a).
"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 Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
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"Quorum" means, with respect to the Administrative Trustees, a
majority of the Administrative Trustees or, if there are only two Administrative
Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.2(b).
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the Property Trustee's obligations under this
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 Guarantees" means the Common Securities Guarantee and
the Trust Preferred Securities Guarantee.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means Apache Corporation, a Delaware corporation, or
any successor entity, in its capacity as sponsor of the Trust.
"State" means any of the 50 states in the United States or the
District of Columbia.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" with respect to either the Common
Securities or the Trust Preferred Securities means, except as provided elsewhere
in this Agreement or by the Trust Indenture Act, 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus any accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all such
outstanding Common Securities or Trust Preferred Securities.
"Terms and Conditions" means the terms and conditions of the
Common Securities and the Trust Preferred Securities determined by the Sponsor
and executed by the Administrative Trustees in accordance with Section 7.1(b)
and attached hereto as Exhibit A.
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"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue in office 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 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 set forth in Section
7.1(a).
"Trust Preferred Security Beneficial Owner" means, with respect
to a Book Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate
representing a Trust Preferred Security, which shall be prepared by the Sponsor
and a specimen of which shall be substantially in the form attached hereto as
Exhibit A-1.
"Trust Preferred Securities Guarantee" means the guarantee
agreement dated as of the date hereof executed and delivered by the Sponsor and
The Chase Manhattan Bank, as trustee, for the benefit of the Holders, as such
agreement may be modified, supplemented or amended from time to time.
"Trust Property" means (a) the Debentures, (b) any Other
Documents, (c) any cash on deposit in, or owing to, the Property Trust Account,
and (d) all proceeds and rights in respect of the foregoing or any other
property and assets for the time being held or deemed to be held by the Property
Trustee pursuant to this Agreement.
"Underwriting Agreement" means the underwriting agreement for the
offering and sale of Trust Preferred Securities, including any amendments or
supplements thereto.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) Any application of the Trust Indenture Act to this Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2. Lists of Holders of Securities.
(a) In accordance with Section 312(a) of the Trust Indenture Act,
the Administrative Trustees, on behalf of the Trust, shall provide to the
Property Trustee:
(i) within 14 days after each March 15 and September 15 of
each year or such other dates as are set forth in the Terms and
Conditions, 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 such date, provided that the Administrative
Trustees, on behalf of the Trust, shall not be obligated to provide such
List of Holders at any time that the Property Trustee is the Registrar
or the List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Administrative Trustees on
behalf of the Trust; and
(ii) at any other time, within 30 days of receipt by the
Trust of a written request by the Property Trustee for a List of Holders
as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained
in the Lists of Holders given to it or which it receives in the capacity
as Paying Agent or Registrar (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
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 May
15 that first occurs following the issuance of the Securities, the Property
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by Section 313 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 requirements of Section 313(d)
of the Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
The Administrative Trustees, on behalf of the Trust, shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
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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 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 Events of Default; Waiver.
(a) The Holders of not less than a Majority in liquidation amount
of Trust Preferred Securities may, by vote or written consent, on behalf of the
Holders of all of the Trust Preferred Securities, waive any past Event of
Default in respect of the Trust Preferred Securities and its consequences,
provided that, if the corresponding Debenture Event of Default or Other Document
Event of Default:
(i) is not waivable under the Debentures or any Other
Document, if any, as the case may be, the Event of Default under this
Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures or more than a
majority of other interests in such Other Document, as the case may be
(a "Super Majority"), to be waived under the Indenture or such Other
Document, as the case may be, the Event of Default under this Agreement
may only be waived by the vote of the relevant Super Majority in
liquidation amount of Holders of the Trust Preferred Securities.
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 Agreement and the
Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such Debenture Event of Default or Other Document Event of Default shall cease
to exist, and any Event of Default with respect to the Trust Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Trust Preferred Securities
or impair any right consequent thereon. Any waiver by the Holders of the Trust
Preferred Securities of an Event of Default 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 Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property
Trustee, including the right to direct the Property Trustee to exercise the
remedies available to it as a holder of the Debentures and any Other Documents;
provided, however, 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
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directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Property Trustee, being advised by competent legal 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.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Debentures or Other Document,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under this Agreement as provided elsewhere
in this Section 2.6, the Event of Default under this Agreement shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Agreement as provided below
in this Section 2.6, such Event of Default under this Agreement may only
be waived by the vote or consent of the Holders of at least the
proportion in aggregate liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding;
provided further, that, notwithstanding (i) or (ii) above, each Holder of the
Common Securities shall be deemed to have waived any such Event of Default and
all Events of Default with respect to the Common Securities and its consequences
if all Events of Default with respect to the Trust Preferred Securities have
been cured, waived or otherwise eliminated, and until such Events of Default
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) and of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316 (a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Agreement and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such Debenture Event of Default or Other Document Event of
Default shall cease to exist, and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of a Debenture Event of Default or Other Document
Event of Default by the Property Trustee at the direction of the Holders of the
Trust Preferred Securities constitutes a waiver of the corresponding Event of
Default with respect to the Trust Preferred Securities under this Agreement. Any
waiver of a Debenture Event of Default or Other Document Event of Default by the
Property Trustee at the direction of the Holders of the Trust
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Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of the corresponding Event of Default under this
Agreement with respect to the Common Securities for all purposes of this
Agreement without further act, vote or consent of the Holders of the Common
Securities. 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 Agreement and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after a
Responsible Officer of the Property Trustee obtains actual knowledge of the
occurrence of a default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults known to the Property Trustee
other than defaults that have been cured or waived before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to include Debenture Events of Default and Other Document Events of
Default, if any, 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, or in the delivery of any cash, securities or other property in
exchange for or upon conversion or redemption of or otherwise in accordance with
the terms of, any Debenture or Other Document or the Securities, 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 501(1) and 501(2) of the Indenture;
(ii) any failure to deliver any cash, securities or other
property in exchange for or upon conversion or redemption of or
otherwise in accordance with the terms of the Debentures or Other
Documents or the Securities; and
(iii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee shall have actual knowledge.
(c) The Sponsor and the Administrative Trustee shall file
annually within 30 days after May 15 of each year, commencing with the May 15
that first occurs following the issuance of the Securities, with the Property
Trustee in accordance with Section 314(a)(4) of the Trust Indenture Act a
certification as to whether or not they are in compliance with all the
conditions applicable to them under this Agreement.
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ARTICLE III.
ORGANIZATION
Section 3.1 Name.
The Trust is named "Apache Trust [I/II]," as such name may be
modified from time to time by the Administrative Trustees. The Administrative
Trustees shall give prompt written notice of any change in the name of the Trust
to the Delaware Trustee, the Property Trustee and the Holders of the Securities.
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 Apache
Corporation, One Post Oak Central, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. On ten Business Days prior written notice to the Property
Trustee and Holders of the Securities, the Administrative Trustees may designate
another principal office.
Section 3.3 Purposes.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the gross proceeds from such sale to
acquire the Debentures and any Other Documents specified in the Terms and
Conditions, (b) to enter into or hold each Other Document, if any, to be entered
into or held by the Trust in accordance with the Terms and Conditions and (c) 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, execute mortgages or otherwise undertake
(or permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust. It
is the intent of the parties to this Agreement for the Trust to be classified as
a grantor trust for United States federal income tax purposes under Subpart E of
Subchapter J of the Code, pursuant to which the owners of the Trust Preferred
Securities and the Common Securities will be the owners of the Trust for United
States federal income tax purposes, and such owners will include directly in
their gross income the income, gain, deduction or loss of the Trust as if the
Trust did not exist. By the acceptance of this Agreement neither the Trustees
nor the Sponsor or the Holders of the Trust Preferred Securities or Common
Securities will take any position for United States federal income tax purposes,
or permit the Trust to make any election, which is contrary to the
classification of the Trust as a grantor trust.
Section 3.4 Authority.
Subject to the limitations provided in this Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete 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
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Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Agreement.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Trust
Property and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
A Holder 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.
Section 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the power, duty and
authority, which shall be exclusive except as otherwise set forth herein, and
are hereby authorized and directed to cause the Trust to engage in the following
activities:
(a) execute, deliver, issue and sell the Trust Preferred
Securities and the Common Securities in accordance with this 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 shall be limited to a simultaneous
issuance of both Trust Preferred Securities and Common Securities on each
Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities:
(i) assist in filing with the Commission any registration
statement and any prospectus relating to the registration statement on
Form S-3 prepared by the Sponsor, including any amendments or
supplements thereto, pertaining to the Trust Preferred Securities and to
take any other action relating to the registration and sale of the Trust
Preferred Securities under federal and state securities laws;
(ii) 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;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for listing
or quotation of any Trust Preferred Securities;
(iv) execute and file with the Commission any registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Trust Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act;
(v) execute and enter into and deliver the Underwriting
Agreement providing for the sale of the Trust Preferred Securities;
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(vi) execute and deliver letters, documents or instruments
with DTC and other Clearing Agencies relating to the Trust Preferred
Securities;
(vii) execute the Terms and Conditions and attach them to
this Agreement; and
(viii) execute, enter into or file any other instrument,
agreement, certificate or other document negotiated or prepared by the
Sponsor on behalf of the Trust, including any Other Document to be
entered into or held by the Trust, and to take such other action, in
each case as the Administrative Trustees or any of them deem necessary
or incidental (and not otherwise covered by the power of the other
Trustees hereunder or under the Securities), in connection with the
issuance, the sale or the terms of any Securities and the investment by
the Trust in the Trust Property, including any remarketing, auction or
similar agreements.
(c) acquire the Debentures and any Other Documents with the
proceeds of the sale of the Trust Preferred Securities and the Common
Securities; provided, however, that the Administrative Trustees shall cause
legal title to the Debentures and any Other Documents to be acquired by the
Trust on a Closing Date to be held of record in the name of the Property Trustee
for the benefit of the Trust and the Holders of the Trust Preferred Securities
and the Holders of Common Securities;
(d) give the Sponsor and the Property Trustee prompt written
notice of the occurrence of any event that, in accordance with this Agreement,
may require that a notice be sent to Holders, including events that may result
in an Event of Default, or any redemption, conversion or exchange of or deferral
of distributions on the Securities;
(e) 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, any repayments, any redemptions, any conversions
and any 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) take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities and this
Agreement;
(g) to the fullest extent permitted by law, 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) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
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(j) 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) incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) act as, or appoint another Person to act as, Registrar and
transfer agent for the Securities;
(m) 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 or to enable the Trust to effect the purposes for which the Trust was
created;
(n) take any action, not inconsistent with this Agreement or with
applicable law, that the Administrative Trustees determine in their discretion
to be necessary or incidental in carrying out the activities of the Trust,
including:
(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 for United States
federal income tax purposes as a grantor trust; 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,
provided, in each case, that such action does not adversely affect the interests
of Holders;
(o) 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 on behalf of the Trust;
(p) execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters which
the Administrative Trustees deem necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes of the Trust
set out in Section 3.3. None of the Administrative Trustees shall take any
action that is inconsistent with the purposes 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. No permissive power or authority available to the Administrative
Trustees shall be construed to be a duty.
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Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Sponsor.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees shall not cause the Trust to, engage
in any activity other than as required or authorized by this Agreement. In
particular, the Trust shall not and the Trustees shall not cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures or other Trust Property, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of this
Agreement and of the Securities;
(ii) acquire or vary any assets other than as expressly provided
herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness for borrowed money,
other than loans represented by the Debentures or other Trust Property;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as provided in this Agreement;
(vii) take or consent to any action that would result in the
placement of a lien on any Trust Property;
(viii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(ix) other than as provided in this Agreement, (A) direct or
exercise any remedy, trust or power with respect to the Debentures, or
any other instrument or agreement constituting Trust Property, (B) waive
any past default that is waivable under the Indenture or any Other
Document, (C) exercise any right to rescind or annul any declaration
that the principal of or other amounts payable or other property
deliverable under the Debentures or amounts payable or other property
deliverable under any Other Document shall be due and payable, or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures or any Other Document, in the case of each of clauses
(A) through (D), (x) without the approval of a Majority in liquidation
amount with respect to the Securities or, where a consent under the
Indenture or Other Document, as the case may be, would require the
consent of each holder of Debentures or other interests, as the case may
be, affected thereby, of each Holder of Securities, and (y) unless the
Trust shall have received an opinion of nationally recognized
independent tax counsel to the effect that the Trust will not, as a
result of such action, fail to be classified as a grantor trust for such
purposes.
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Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Trust Property shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Trust Property shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance with
Section 5.6. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Trust Property have been executed
and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Trust Property to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee) or,
except in accordance with the provisions of this Agreement and the Securities,
any other Person.
(c) The Property Trustee shall:
(i) establish and maintain one or more segregated
non-interest bearing trust accounts (collectively, the "Property Trustee
Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Trust and the Holders and, upon the receipt of
funds in respect of the Trust Property, deposit such funds into the
Property Trust Account and, upon the receipt of funds distributed to the
Property Trustee in respect of the Trust Property held by the Property
Trustee, deposit such funds into the Property Trustee Account, and make
distributions of such funds out of the Property Trust Account to the
Holders of the Trust Preferred Securities and the Holders of the Common
Securities in accordance with the terms of this Agreement and the
Securities. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Agreement and the
Securities. The Property Trustee Account shall be one or more accounts
maintained with one or more banking institutions (which may include the
Property Trustee if it qualifies hereunder) the rating on whose
long-term unsecured indebtedness is rated at least "A" or above by a
"nationally recognized statistical rating organization," as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) upon receipt of any Trust Property on each Closing Date
and the receipt of any property other than funds distributed to the
Property Trustee in respect of Trust Property held by the Property
Trustee, hold such other property in safe keeping and make distributions
of such other property to the Holders of the Trust Preferred Securities
and the Holders of the Common Securities in accordance with the terms of
this Agreement and the Securities; and
(iii) engage in such ministerial activities as shall be
necessary or incidental to hold the Trust Property in accordance with
the provisions hereof and to effect distributions on and any redemption,
repayment, conversion or exchange of the Trust Preferred Securities or
the Common Securities and the distribution of all or any part of the
Trust Property to Holders in liquidation of the Trust or otherwise, in
each case in accordance with the terms of this Agreement and the
Securities.
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(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 the Securities and this Agreement.
(e) Subject to Section 3.9(a), the Property Trustee shall take
any Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Agreement, the Business
Trust Act or the Trust Indenture Act; provided, however, that if the Property
Trustee fails to enforce its rights under the Debentures or any Other Document
after a Holder of Trust Preferred Securities has made a written request, such
Holder of Trust Preferred Securities may, to the fullest extent permitted by
applicable law, institute a legal proceeding against the Debenture Issuer or any
obligor under any Other Document, as the case may be, without first instituting
any legal proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to (i) the failure of the Debenture
Issuer to pay interest or any premium on or principal of the Debentures on the
date such interest or principal is otherwise payable (including, in the case of
repayment or redemption, on the repayment or redemption date) or, if the
Debentures are exchangeable or convertible, the failure of the Debenture Issuer
to convert or exchange the Debentures into or for other property in accordance
with the terms thereof, or (ii) the failure of any obligor under any Other
Document to pay or deliver cash, securities or other property in accordance with
the terms of such Other Document, then, in the case of (i) and (ii), a Holder of
Trust Preferred Securities may directly institute a proceeding (a "Direct
Action") for enforcement of payment or delivery to such Holder of the principal
of or interest on or other property deliverable upon the exchange or conversion
of Debentures having a principal amount equal to the aggregate liquidation
amount of the Trust Preferred Securities of such holder on or after the due date
specified in the Debentures or any cash, securities or other property that is
required to be paid or delivered pursuant to such Other Document on or after the
due date therefor equal to the percentage of outstanding securities represented
by such Holder's Securities. In connection with such Direct Action, the rights
of the Holders of Common Securities will be subordinated to the rights of such
Holders of Trust Preferred Securities. Except as provided in the preceding
sentences, the Holders of Trust Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures or
Other Documents.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely dissolved and wound up and
the proceeds of the liquidation distributed to the Holders of Securities
and the Trust is terminated, in accordance with the terms of the
Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of the Trust as holder of Debentures under the
Indenture and as beneficiary of or party to any Other Document and, if an Event
of Default actually known to a Responsible Officer of the Property Trustee
occurs and is continuing, the Property Trustee shall,
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for the benefit of Holders of the Securities, enforce the rights of the Trust as
holder of the Debentures and as beneficiary of or party to any Other Document
subject, in each case, to the rights of the Holders pursuant to the terms of the
Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) 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.
(j) For such time as the Property Trustee is the Paying Agent,
the Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to make distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities. Any such
additional Paying Agent may be removed by the Property Trustee, at any time, so
long as the Property Trustee remains as Paying Agent and a successor Paying
Agent or additional Paying Agents may be (but are not required to be) appointed
at any time by the Property Trustee.
(k) The Property Trustee must 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 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 Event of
Default and after the curing or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Agreement and no implied covenants shall be read into this
Agreement against the Property Trustee. In case an Event of Default 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
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.
(b) No provision of this Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, its bad faith or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this 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 Agreement, and no implied
covenants or obligations shall be read into this Agreement
against the Property Trustee; and
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(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 Agreement; provided, that in the case of
any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the 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 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 Agreement;
(iv) no provision of this 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
Agreement or if 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 Trust Property
and the Property Trustee Account shall be to deal with such property in
a manner that is similar to the manner in which the Property Trustee
deals with similar property for its fiduciary accounts generally,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Agreement, the Business Trust Act 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 Trust Property 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 in
writing 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 Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
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(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 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 Agreement shall be
sufficiently evidenced by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this 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 negligence or 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 rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with competent legal
counsel or other competent experts and the advice or written opinion of
such counsel and experts with respect to legal matters or advice within
the scope of such legal counsel's or 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 Sponsor or any of its Affiliates, and may include any of its
employees; and the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this 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 Agreement at
the request or direction of any Holder, unless (A) such Holder shall
have provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the reasonable costs,
expenses (including reasonable attorneys' fees and expenses and the
reasonable 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 and (B) the Property Trustee
has
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obtained the legal opinions, if any, required by the applicable provisions of
this Agreement, provided that nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in it by
this Agreement;
(vii) the Property Trustee shall be under no obligation to
conduct an 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 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 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 (A) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled
to direct the Property Trustee under the terms of the Securities in
respect of such remedy, right or action), (B) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (C) shall be protected in conclusively relying on or
acting in accordance with such instructions, provided that -------- the
Property Trustee shall not take any action unless it shall have obtained
the legal opinions required by the applicable provisions of this
Agreement;
(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
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(b) No provision of this 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 Agreement other than
Section 5.2, 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 Trustees (except as required under the Business Trust Act) described in this
Agreement. Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. In the event that the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder,
the Delaware Trustee shall be entitled to the benefits of Section 3.9(b)(ii) and
(viii) and Section 3.10. No implied covenants or obligations shall be read into
this Agreement against the Delaware Trustee.
Section 3.12 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this 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
Agreement or the Securities.
Section 3.13 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions hereof,
shall [dissolve on _____________________] [have perpetual existence].
Section 3.14 Mergers.
(a) The Trust may not consolidate, amalgamate, merge or convert
with or into, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, any Person, except for
the sole purpose of changing its domicile and as set forth in Section 3.14(b)
and (c).
(b) Subject to Section 3.14(a), the Trust may, at the request of
the Sponsor, 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, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge or convert with or into, or be replaced by a trust organized
as such under the laws of any State; provided that:
(i) the successor entity (the "Successor Entity") expressly
assumes all of the obligations of the Trust under any agreement to which
the Trust is a party and either:
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(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Trust Preferred Securities
other securities having substantially the same terms as the
Trust Preferred Securities (the "Successor Trust Preferred
Securities"), so long as the Successor Trust Preferred
Securities rank the same as the Trust Preferred Securities
rank with respect to distributions of Trust Property and
payments upon liquidation, redemption, repayment and otherwise
and substitutes for the Common Securities other securities
having substantially the same terms as the Common Securities
(the "Successor Common Securities"), so long as the Successor
Common Securities rank the same as the Common Securities rank
with respect to distributions of Trust Property and payments
upon liquidation, redemption, repayment and otherwise;
(ii) the Successor Entity has a trustee that possesses
substantially the same powers and duties as the Property Trustee;
(iii) the Trust Preferred Securities or any Successor
Securities will be listed, quoted or included for trading, or any
Successor Securities will be listed, quoted or included for trading upon
notification of issuance if applicable, on any national securities
exchange or with another system on which the Trust Preferred Securities
are then listed, quoted or included for trading;
(iv) such merger, conversion, consolidation, amalgamation or
replacement does not cause the Trust Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, conversion, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor
Securities and any Successor Trust Preferred Common Securities) in any
material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust; (vii) prior to such merger, conversion,
consolidation, amalgamation or replacement, the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, conversion, consolidation,
amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect;
(B) following such merger, conversion, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company; and
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(C) following such merger, conversion, 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, directly or indirectly, owns all of the
Successor Common Securities and guarantees the obligations of such
Successor Entity under the Successor Trust Preferred Securities at least
to the extent provided by the Securities Guarantees.
(ix) the Property Trustee has received an Officers'
Certificate from the Sponsor and an opinion of counsel, each to the
effect that all conditions precedent to the transaction as set forth in
this Agreement have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge or convert with or into, or be replaced by any
other Person or permit any other Person to consolidate, amalgamate or merge with
or into, or replace it if such consolidation, amalgamation, merger, conversion,
or replacement would cause the Trust or Successor Entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE IV.
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
On each Closing Date, the Sponsor shall purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3.0% of
the Securities of the Trust issued on such Closing Date, at the same time as the
Trust Preferred Securities are sold.
Section 4.2 Covenants of the Sponsor.
For so long as the Trust Preferred Securities remain outstanding,
the Sponsor shall:
(i) cause the Trust to remain a statutory business trust and
not to voluntarily dissolve, wind up, liquidate, or terminate, except as
permitted by this Agreement;
(ii) use its commercially reasonable efforts to ensure that
the Trust will not be (A) an Investment Company or (B) classified as
other than a grantor trust for United States federal income tax
purposes.
Section 4.3 Rights and Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities and so long as the Securities are outstanding, the Sponsor shall have
the right and responsibility (which shall be exclusive except as otherwise set
forth herein) to engage in the following activities:
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(a) determine the Terms and Conditions;
(b) prepare, execute and file on behalf of the Trust with the
Commission a registration statement on Form S-3 and any prospectus or prospectus
supplement relating to such registration statement in relation to the Trust
Preferred Securities, including any amendments thereto;
(c) if deemed necessary or advisable by the Sponsor, 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 on
behalf of the Trust, and prepare, execute and file any documents on behalf of
the Trust as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(d) if deemed necessary or advisable by the Sponsor, prepare,
execute and file on behalf of the Trust an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Trust Preferred Securities;
(e) if necessary, prepare, execute and file on behalf of the
Trust with the Commission, a registration statement on Form 8-A relating to the
registration of the Trust Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act, including any amendments thereto; and
(f) negotiate the Underwriting Agreement and any other instrument
or agreement which, in the opinion of the Sponsor, the Trust should be a party
to, bound by or a beneficiary of, including any remarketing, auction or exchange
agreement.
Section 4.4 Right to Proceed.
(a) The Sponsor acknowledges the rights of Holders to institute a
Direct Action as set forth in Section 3.8(e) hereto.
Section 4.5 Expenses.
In connection with the offering, sale and issuance of the
Debentures or Other Documents to the Property Trustee and in connection with the
sale of the Securities by the Trust, the Sponsor shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures or Other Documents, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and compensation of
the Trustee under the Indenture in accordance with the provisions of the
Indenture;
(b) be responsible for and shall pay all debts and obligations
(other than with respect to the Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization, maintenance and dissolution of the Trust), the offering, sale and
issuance of the Securities (including commissions to the underwriters in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of
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the Property Trustee, the Delaware Trustee and the Administrative Trustees
(including any amounts payable under Article X of this Agreement), the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, transfer agents, duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Property Trustee of the rights of the Holders;
(c) be primarily liable for any indemnification obligations
arising under Section 10.4 with respect to this Agreement; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
The Sponsor's obligations under this Section 4.5 shall be for the
benefit of, and shall be enforceable by, any Person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.5 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional agreements as
may be necessary or desirable in order to give full effect to the provisions of
this Section 4.5.
ARTICLE V.
TRUSTEES
Section 5.1 Number of Trustees.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by the Holders of a Majority in liquidation amount
of the Common Securities; provided, however, that, the number of Trustees shall
in no event be less than two (2), provided further that (1) one Trustee shall
meet the requirements of Section 5.2(a) or (b); (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee for
so long as this Agreement is required to qualify as an indenture under the Trust
Indenture Act, and such Property Trustee may also serve as Delaware Trustee if
it meets the applicable requirements.
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Section 5.2 Delaware Trustee.
If required by the Business Trust Act, one 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.
(c) The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Section 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee for so long as this Agreement is required to qualify as an
Indenture under the Trust Indenture Act, 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 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 5.3(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 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(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.
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(d) The Trust Preferred Securities Guarantee and the Indenture
[Describe others if applicable] shall be deemed to be specifically described in
this Agreement and the Indenture for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Section 5.4 Certain 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 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(a) Except as otherwise expressly set forth in this Agreement and
except if a meeting of the Administrative Trustees is called in accordance with
Section 5.9 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 in
accordance with Section 5.9, 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.
Section 5.6 Appointment; Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities, by the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the
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Holders of the Common Securities unless an Event of Default shall have
occurred and be continuing, and
(iii) if an Event of Default shall have occurred and be
continuing, after the issuance of the Securities, with respect to:
(A) the Administrative Trustees, by vote or written
consent of the Holders of a Majority in liquidation amount of
the Common Securities acting separately as a class; and
(B) the Property Trustee and the Delaware Trustee, by
vote or written consent of the Holders of a Majority in
liquidation amount of the Trust Preferred Securities, acting
separately as a class.
(b) (i) The Property Trustee shall not be removed in accordance
with Section 5.6(a) until a Successor Property Trustee possessing the
qualifications to act as Property Trustee under Sections 5.2 and 5.3 has
been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Administrative Trustees, the Delaware Trustee (if the removed Property
Trustee is not also the Delaware Trustee) and the Sponsor.
(ii) The Delaware Trustee shall not be removed in accordance
with Section 5.6(a) until a successor possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (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, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee) and the
Sponsor.
(c) A Trustee appointed to office shall hold office until such
Trustee's successor shall have been appointed or until such Trustee's death,
bankruptcy, dissolution, termination, 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 other Trustees,
the Sponsor, the Trust and, after an Event of Default has occurred and is
continuing, the Holders of Trust Preferred Securities, 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 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, the Delaware Trustee, the resigning
Property Trustee and, after an Event of Default has occurred
and is continuing, the Holders of Trust Preferred Securities;
or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities and the Trust is terminated
pursuant to the terms of this Agreement and the Securities;
and
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(ii) no such resignation of 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, the Property
Trustee, the resigning Delaware Trustee and, after an Event of Default
has occurred and is continuing, the Holders of Trust Preferred
Securities.
(d) The Holders of the Common Securities or, if an Event of
Default has occurred and is continuing after the issuance of any Securities, the
Holders of Trust Preferred Securities shall use all reasonable 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 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the other Trustees, the Sponsor,
the Trust and, after an Event of Default has occurred and is continuing, the
Holders of the Trust Preferred Securities of an instrument of resignation, the
resigning 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. 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.
(g) At the time of the resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee any
amounts that may be owed to such Trustee pursuant to Section 10.4.
Section 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees
is increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two Administrative Trustees, 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 5.6.
Section 5.8 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 dissolve, terminate or annul the Trust. Whenever a
vacancy among the Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 5.6, 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
Agreement.
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Section 5.9 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 or any committee thereof
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 Agreement, any action of the Administrative Trustees
may be taken at (i) 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 (ii) without a
meeting and without prior notice 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 5.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6.
(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 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 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided
however, that such successor shall promptly notify the Sponsor (except that a
Successor Delaware Trustee shall file an appropriate amendment to the
Certificate of Trust of the Trust, if required by the Business Trust Act).
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ARTICLE VI.
DISTRIBUTIONS
Section 6.1 Distributions.
If and to the extent that the Trust receives income on any
Debenture or pursuant to any Other Document whether in cash, securities or other
property as proceeds from the redemption, repayment, conversion, exchange,
maturity or other disposition of any Debenture or pursuant to any Other Document
(including any interest or premium on or the principal of the Debentures, any
securities or other property received in exchange or upon conversion of the
Debentures, or any cash, securities or other property received under any Other
Document), then, unless otherwise specified in this Agreement, the Property
Trustee shall distribute such income, cash, securities and other property to the
Holders of the Securities in accordance with the terms of the Securities they
hold as set forth in this Agreement, including the Terms and Conditions. The
Property Trustee shall make the distributions on the Trust Preferred Securities
and the Common Securities in accordance with the relative rights, preferences
and privileges that apply to each of those classes of Securities as set forth in
this Agreement.
ARTICLE VII.
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities
(a) The Administrative Trustees shall, on behalf of the Trust,
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in the
Terms and Conditions (the "Trust Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in the Terms and Conditions (the
"Common Securities"). 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.
(b) The terms of the Securities shall be established by the
Sponsor and set forth in the Terms and Conditions. The Terms and Conditions
shall be executed by each of the Administrative Trustees, attached to this
Agreement as Exhibit A and set forth the following to the extent not provided
by, or in lieu or modification of, the other provisions of this Agreement:
(1) the designation of the Trust Preferred Securities and the designation
of the Common Securities;
(2) any limit upon the number and/or aggregate liquidation amount of the
Trust Preferred Securities or the Common Securities to be executed and
delivered under this Agreement (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of such class pursuant to Section 9.2,
9.7 or 9.8, upon repayment or redemption in part of any Security or
upon surrender in part of any Security for conversion or exchange into
other securities pursuant to its terms);
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(3) the amounts payable out of the assets of the Trust to, and any other
rights of the Holders upon, the liquidation of the Trust and any
provisions for the dissolution and liquidation of the Trust, including
the obligation, if any, of the Sponsor, the Trust or any other party
to liquidate the Trust and any terms and conditions of such
liquidation;
(4) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the liquidation amount and
premium, if any, of the Securities are distributable;
(5) the rate or rates at which income on the Trust Property shall be
distributed to Holders, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates, if any,
from which such income shall accrue or the method or methods, if any,
by which such date or dates are to be determined, the date or dates,
if any, on which such income shall be payable, including any deferral
provisions, and the record date or dates, if any, for the income
payable on the Securities on any such income payment date, the notice,
if any, to Holders regarding the determination of income on a floating
rate Security and the manner of giving such notice, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(6) whether the Distributions on the Securities will be cumulative and, if
so, the dates from which and upon which distributions will accumulate
and be payable;
(7) whether, in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the distributions on the
Securities may be made, the Securities may be surrendered for
registration of transfer, exchange, redemption, repayment, conversion
or upon maturity, and notices or demands to or upon the Trust in
respect of the Securities and this Agreement may be served;
(8) whether the Trust is obligated or entitled to redeem or purchase any
of such Securities at its option, pursuant to any sinking fund or
analogous provision or at the option of any Holder thereof or
otherwise, and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing, auction or other secondary sales of
Securities so redeemed or purchased;
(9) the denominations in which the Securities shall be issuable if other
than denominations of $1,000 and any integral multiple;
(10) whether the Securities will be convertible into and/or exchangeable
for other securities or property or both, and if so, the terms and
conditions upon which the Securities will be so convertible or
exchangeable;
(11) any voting rights granted to the Holders of the Trust Preferred
Securities or the Common Securities in addition to or in lieu of the
voting rights set forth elsewhere in this Agreement;
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(12) if other than U.S. dollars, the currency in which cash distributions
on the Securities shall be payable;
(13) if cash distributions with respect to the Securities are to be
payable, at the election of the Trust or a Holder thereof or
otherwise, in a currency other than that in which the Securities are
stated to be payable, the date or dates on which, the period or
periods within which, and the other terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency in which the Securities are stated
to be payable and the currency in which the Securities or any of them
are to be paid pursuant to such election;
(14) whether any distributions may be determined with reference to an
index, formula or other method or methods (which index, formula or
method or methods may be based, without limitation, on one or more
currencies, commodities, equity indices or other indices), and, if so,
the terms and conditions upon which and the manner in which such
amounts shall be determined and paid or payable;
(15) the title and amount of the Debentures and any Other Documents to be
acquired with the proceeds of the sale of the Securities;
(16) the ranking of the Trust Preferred Securities and the Common
Securities; and
(17) any other rights, preferences, restrictions, limitations or conditions
relative to the Trust Preferred Securities or the Common Securities
permitted by Delaware law and any deletions from or modifications or
additions to this Agreement, including any Events of Default or
covenants of any of the parties hereto, in respect of the Securities,
provided no covenant in this Agreement may be modified without the
consent of the party giving such covenant.
(c) The Certificates shall be in the forms prepared by the
Sponsor and signed on behalf of the Trust by one Administrative Trustee. Such
signature shall be the manual or facsimile signature of any present or any
future Administrative Trustee. In case any Administrative Trustee who shall have
signed any of the Securities shall cease to be such 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 Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by any persons who, at the
actual date of execution of such Certificate, shall be an Administrative Trustee
of the Trust, although at the date of the execution and delivery of the
Agreement any 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 Trustee, as evidenced
by such individual's execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Administrative Trustee that signs such Certificates may deem appropriate, or
as may be required to comply with any law or with any rule or regulation of any
stock exchange on which Securities may be listed, or to conform to usage.
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A Trust Preferred Security Certificate 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 a Trust Preferred
Security Certificate has been authenticated under this Agreement.
Each Trust Preferred Security Certificate shall be dated the
date of its authentication by the Property Trustee. Each Common Security
Certificate shall be dated the date it is executed by an Administrative Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate Trust Preferred Security
Certificates, provided the aggregate liquidation amount or number of the Trust
Preferred Securities shall not exceed the aggregate liquidation amount or
number, as the case may be, of Trust Preferred Securities designated in the
Terms and Conditions, as such liquidation amount or number, as the case may be,
may be reduced by redemptions, repayments, exchanges, conversions or liquidating
distributions.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust Preferred
Security Certificates. An authenticating agent may authenticate Trust Preferred
Security Certificates whenever the Property Trustee may do so. Each reference in
this 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 the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Agreement, the Securities so issued shall be deemed to be validly issued, fully
paid and, subject to Section 10.1(b), non-assessable.
(f) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
Section 7.2 Paying Agent and Registrar.
In the event that the Trust Preferred Securities are not in
book-entry only form:
(a) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent"), and any such Paying Agent shall
comply with Section 317(b) of the Trust Indenture Act. The Administrative
Trustees on behalf of 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 Administrative
Trustees on behalf of the Trust may change any Paying Agent without prior notice
to any Holder. The Administrative Trustees on behalf of the Trust shall notify
the Property Trustee of the name and address of any Paying Agent not a party to
this Agreement. If the Administrative Trustees on behalf of the Trust fail to
appoint or maintain another entity as Paying Agent, the Property
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Trustee shall act as such. The Administrative Trustees on behalf of the Trust or
any of its Affiliates (including the Sponsor) may act as Paying Agent. The
Property Trustee at its Corporate Trust Office shall initially act as Paying
Agent for the Trust Preferred Securities and the Common Securities.
(b) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Trust Preferred Securities may be
presented for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register of the Trust Preferred Securities and of their transfer or
exchange. The Administrative Trustees on behalf of the Trust may appoint the
Registrar and may appoint one or more co-registrars in such other locations as
it shall determine. The term "Registrar" includes any such additional registrar.
The Administrative Trustees on behalf of the Trust may change any Registrar or
co-registrar without prior notice to any Holder. The Administrative Trustees on
behalf of the Trust shall notify the Property Trustee of the name and address of
any Agent not a party to this Agreement. If the Administrative Trustees on
behalf of the Trust fail to appoint or maintain another entity as Registrar, the
Property Trustee shall act as such. The Trust or any of its Affiliates
(including the Sponsor) may act as Registrar. The Administrative Trustees on
behalf of the Trust shall act as Registrar for the Common Securities.
(c) Notwithstanding Sections 3.6(b)(vi) and 3.6(l), the Trust
initially appoints the Property Trustee as Registrar for the Trust Preferred
Securities and authorizes it to execute and deliver letters, documents and
instruments with DTC and other Clearing Agencies relating to the Trust Preferred
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
(a) The Trust shall dissolve and its affairs shall be wound up
upon the first of the following to occur:
(i) (other than in connection with a merger, consolidation or
similar transaction not prohibited by this Agreement or any Trust
Property) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; or the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(ii) upon the entry of a decree of judicial dissolution of
the Trust;
(iii) when all the Securities shall have been called for
redemption, repayment, conversion or exchange and the amounts necessary
for redemption, repayment, conversion or exchange thereof shall have
been distributed to the Holders in accordance with the terms of this
Agreement and the Securities;
(iv) upon the liquidation of the Trust and the distribution
to the Holders of all amounts they are required to receive in accordance
with the terms of this Agreement and the Securities;
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(v) the expiration of the term of the Trust provided in
Section 3.14 of this Agreement; and
(vi) any other event specified in the Terms and Conditions.
(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 of the
Trust, an Administrative Trustee shall file a certificate of cancellation of the
Certificate of Trust of the Trust with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.4 and Article X shall survive the
termination of the Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
Section 9.1 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 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 Agreement
shall be null and void.
(b) Subject to this Article IX and the Terms and Conditions,
Trust Preferred Securities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer or Exchange of Certificates.
The Registrar shall provide for the registration of Certificates
and of transfers or exchanges of Certificates, which shall be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other government charges that may be
imposed in relation to it. The Trust will not be required to register or cause
to be registered the transfer of its trust preferred securities after they have
been converted, exchanged, repaid, redeemed or called for redemption. Upon
surrender for registration of transfer or exchange of any Certificate at the
Corporate Trust Office of the Property Trustee, the applicable Registrar shall
cause one or more new Certificates to be issued
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in the name of the designated transferee or transferees or the party requesting
the exchange, as the case may be. Every Certificate surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
or exchange in form satisfactory to the applicable Registrar and duly executed
by the Holder or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
canceled by the applicable Registrar. A transferee of a Certificate and the
recipient of one or more Certificates issued in exchange for cancelled
Certificates shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee or recipient of a
Certificate or Certificates duly executed by an Administrative Trustee and, in
the case of a Trust Preferred Security Certificate, authenticated by the
Property Trustee. By acceptance of a Certificate, each transferee shall be
deemed to have agreed to be bound by this Agreement.
Section 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions 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 9.4 Book Entry Interests.
Unless otherwise specified in the Terms and Conditions, the Trust
Preferred Securities Certificates, on original issuance, shall be issued in the
form of one or more, fully registered, global Trust Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Each such Global Certificate
shall initially be registered on the books and records of the Trust in the name
of Cede & Co., the nominee of DTC, and no Trust Preferred Security Beneficial
Owner will receive a definitive Trust Preferred Security Certificate
representing such Trust Preferred Security Beneficial Owner's interests in any
Global Certificate, except as provided in Section 9.7. Except for the definitive
Trust Preferred Security Certificates issued to the Trust Preferred Security
Beneficial Owners pursuant to Section 9.7 or in accordance with the Terms and
Conditions:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees and any Agent shall be entitled to
deal with the Clearing Agency for all purposes of this Agreement (including the
payment of distributions on any Global Certificate and receiving approvals,
votes or consents hereunder) as the Holder of the Trust Preferred Securities and
the sole holder of any Global Certificate and shall have no obligation to the
Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement other than the Terms and
Conditions, the provisions of this Section 9.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and
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agreements between the Trust Preferred Security Beneficial Owners and the
Clearing Agency and/or the Clearing Agency Participants to receive and transmit
payments and other distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers among the Clearing
Agency Participants; provided, that, solely for the purposes of determining
whether the Holders of the requisite amount of Trust Preferred Securities have
voted on any matter provided for in this Agreement, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Trust Preferred Security Beneficial Owners' votes or assigning
the right to vote on any matter to any other Persons either in whole or in part.
Section 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Agreement, unless and until definitive
fully registered Trust Preferred Security Certificates shall have been issued to
the Trust Preferred Security Beneficial Owners pursuant to Section 9.7 or
otherwise, the Administrative Trustees shall give all such notices and
communications specified herein to be given to the Trust Preferred Security
Holders to the Clearing Agency, and shall have no notice obligations to the
Trust Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Trust Preferred Securities.
Section 9.7 Definitive Trust Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Administrative Trustees elect after consultation with the
Sponsor to terminate the book-entry system through the Clearing Agency with
respect to the Trust Preferred Securities, then:
(1) definitive fully registered Trust Preferred Security
Certificates shall be prepared and executed by the Administrative
Trustees and authenticated by the Property Trustee on behalf of
the Trust with respect to such Trust Preferred Securities; and
(2) upon surrender of any Global Certificate by the Clearing
Agency, accompanied by registration instructions, the
Administrative Trustees shall cause definitive fully registered
Trust Preferred Securities Certificates to be executed, and the
Property Trustee shall cause such Trust Preferred Securities
Certificates to be authenticated and delivered to Trust Preferred
Security Beneficial Owners in
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accordance with the instructions of the Clearing Agency. Neither
the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions
of the Clearing Agency. The definitive fully registered Trust
Preferred Security 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 their
execution thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements as the Administrative Trustees and the Property
Trustee may deem appropriate, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which
Trust Preferred Securities may be listed, or to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificate shall be surrendered to the
Administrative Trustees, or if the Administrative Trustees 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 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, in
the case of a Trust Preferred Securities Certificate, 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 9.8, the
Administrative Trustees and the Property Trustee 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.
ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Debentures, any other instrument or agreement, the Securities Guarantees and the
terms of the Securities, the Sponsor shall not be:
(i) 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; or
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(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor, as the Debenture Issuer, 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 10.2 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 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, in
the case of the Property Trustee, negligence), bad faith 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 been selected with reasonable care
by or 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 10.3 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 Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this 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:
(i) whenever a conflict of interest exists or arises between
any Covered Persons and any Indemnified Person; or
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(ii) whenever this Agreement or any other instrument or
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 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 Agreement an Indemnified Person is permitted
or required to make a decision:
(i) in its "sole 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
Agreement or by applicable law.
Section 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company 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 Company
Indemnified Person against expenses (including reasonable attorneys'
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 Company 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 Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a
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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 Company Indemnified Person against expenses
(including reasonable 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 Company 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 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company 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 Common Security Holder of the Trust.
(iv) Expenses (including reasonable attorneys' fees)
incurred by a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the
Sponsor in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Sponsor as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor 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, independent legal counsel or Common Security Holder at the
time such determination is made, such 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 Company Indemnified Person 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 Holder reasonably determine
that such person deliberately breached such person's duty to the Trust
or its Common or Trust Preferred Security Holders.
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(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4(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 shareholders or disinterested directors of the
Sponsor 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 10.4(a) shall be deemed to be provided by a contract
between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company 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 Sponsor would have the power to indemnify him against such liability
under the provisions of this Section 10.4(a).
(vii) For purposes of this Section 10.4(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 10.4(a) with respect to the resulting or surviving entity
as such person 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 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a Company Indemnified Person and shall inure to the
benefit of the successors, heirs, executors and administrators of such a
person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify each Fiduciary Indemnified Person for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense to the
extent incurred without gross negligence (or in the case of the Property
Trustee, pursuant to Section 3.9, negligence), bad faith or willful misconduct
on its part, arising out of or in connection with the 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 provisions of this
Section 10.4(b) shall survive the satisfaction and discharge of this Agreement
and any resignation or removal of the Property Trustee or the Delaware Trustee,
as the case may be.
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Section 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. 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.
Section 10.6 Trustees' Fees and Expenses.
Each Trustee shall receive as compensation for its services
hereunder such fees and expenses as have been separately agreed upon before the
date hereof between the Sponsor and such Trustee, and each Trustee shall be
entitled to be reimbursed by the Sponsor for other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as such Trustee may employ in
connection with the exercise and performance of its rights and duties hereunder.
ARTICLE XI.
ACCOUNTING
Section 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees on behalf of the Trust shall keep, or cause to be kept,
full books of account, records and supporting documents, all of 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, which may also serve as the independent certified public accountant
for the Sponsor or any Affiliate of the Sponsor.
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(b) The Administrative Trustees, on behalf of the Trust, shall
cause to be duly prepared and delivered to each of the Holders of Securities,
any annual United States federal income tax information statement required by
the Code and the Treasury Regulations, 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 on behalf of the
Trust shall endeavor to deliver all such statements within 30 days after the end
of each Fiscal Year of the Trust.
(c) The Administrative Trustees on behalf of the Trust 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 Trust with any state or local
taxing authority.
Section 11.3 Banking.
The Administrative Trustees, on behalf of 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 for the benefit of holders of
Securities of funds in respect of Trust Property shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee 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 Trustee Account.
Section 11.4 Withholding.
The Administrative Trustees on behalf of the Trust 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 on behalf of the Trust 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.
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ARTICLE XII.
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
Except as otherwise provided in this Agreement or by any
applicable terms of the Securities:
(a) this Agreement may only be amended by a written instrument
approved and executed by the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees) and:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, also by the Property
Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the Delaware
Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Agreement (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, 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 Agreement (including the terms
of the Securities); and
(B) an opinion of qualified independent counsel that
such amendment is permitted by, and conforms to, the terms of
this Agreement (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(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;
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(c) after the Trust has issued any Securities that remain
outstanding, without the consent of the Holders of a Majority in liquidation
amount of each class of Securities affected, this Agreement may not be amended
for any reason in a manner that would adversely affect the rights, privileges or
preferences of such class of Securities, provided that, except as may be
provided in the Terms and Conditions, without the consent of each Holder of
Securities affected thereby, this Agreement may not be amended to:
(i) change the Distribution rate, or manner of calculation of
the Distribution rate, amount, timing or currency or otherwise adversely
affect the method of any required payment;
(ii) change the purpose of the Trust;
(iii) authorize the issuance of any additional beneficial
interests in the Trust;
(iv) change the conversion, exchange, redemption or repayment
provisions, if any;
(v) change the conditions precedent for the Sponsor to elect
to dissolve the Trust and distribute the debt securities held by the
Trust to the Holders of the Trust Securities, if applicable;
(vi) change the liquidation, distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust;
(vii) affect the limited liability of any Holder of the Trust
Securities; or
(viii) restrict the right of a Holder of the Trust Securities
to institute suit for the enforcement of any required payment on or, if
applicable, after the due date therefor or for the conversion or
exchange of the Securities in accordance with their terms.
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Sponsor;
(f) the rights of the holders of the Common Securities under
Article V 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; and
(g) notwithstanding Section 12.1(c), this Agreement may be
amended by the Trustees and the Sponsor without the consent of the Holders of
the any Securities that are outstanding to:
(i) cure any ambiguity;
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(ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision of this
Agreement;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) conform to any change in the Investment Company Act or
the Trust Indenture Act or the rules and regulations promulgated
thereunder or any written change in interpretation or application of
such act or such rules or regulations by any legislative body, court,
government agency or regulatory authority; or
(v) cause the Trust to continue to be classified for United
States federal income tax purposes as a grantor trust,
provided however, that, in the case of clauses (i) or (ii), such action shall
not adversely affect in any material respect the interests of the Holders.
Any amendments to this Agreement adopted pursuant to Section 12.1(g)
shall become effective when notice thereof is given to the Holders.
Section 12.2 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
Securities are entitled to act under the terms of this Agreement, the terms of
the Securities or the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders if directed to do so by the Holders of at least
10% in liquidation amount 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 Agreement, the terms of the Securities or the rules
of any stock exchange on which the Trust Preferred Securities are listed
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
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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 Holder of Securities 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 it. 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 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 Agreement, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Trust Preferred Securities are then listed
or 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 XIII.
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of 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 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, a national
banking association or a bank with trust powers, duly organized, validly
existing and in good standing under the laws
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of the United States of America or any State of the United States, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The 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 Agreement by
the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of this Agreement.
Section 13.2 Representations and Warranties of 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 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 is a banking corporation or national
banking association, duly organized, validly existing and in good standing under
the laws of the State of Delaware or the United States, as the case may be, with
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee, and it 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);
(c) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Agreement;
and
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(d) the execution, delivery and performance of the Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Delaware Trustee; and
(e) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 Notices.
All notices provided for in this 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 Administrative Trustees or 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 Holders of the
Securities and the other Trustees):
Apache Trust [I/II]
c/o Apache Corporation
One Post Oak Central
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Chase Manhattan Bank Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
(c) if given to the Property Trustee, at its Corporate Trust
Office to the attention of Capital Markets Fiduciary Services (or such other
address as the Property Trustee may give notice of to the Holders of the
Securities):
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
(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 to the Trust and the other
Trustees):
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Apache Trust [I/II]
c/o Apache Corporation
One Post Oak Central
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by 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 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
Section 14.3 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 Agreement shall be interpreted to further this intention of
the parties.
Section 14.4 Headings.
Headings contained in this Agreement are inserted for convenience
of reference only and do not affect the interpretation of this Agreement or any
provision hereof.
Section 14.5 Successors and Assigns.
Whenever in this 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 Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this 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 14.7 Entire Agreement.
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This Agreement constitutes the entire agreement among the
parties. It supersedes any prior agreement or understandings among them, and it
may not be modified or amended in any manner other than as set forth herein.
Section 14.8 Remedies.
The failure of any party to seek redress for violation of, or to
insist upon the strict performance of, any provision of this Agreement shall not
prevent a subsequent act, which would have originally constituted a violation,
from having the effect of an original violation. The rights and remedies
provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
Section 14.9 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by affixing the signature of
each of the Trustees 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.
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IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Administrative Trustee
of the Trust
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Administrative Trustee
of the Trust
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee
By:
------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Property Trustee
By:
------------------------------------------
Name:
Title:
APACHE CORPORATION
as Sponsor
By:
------------------------------------------
Name:
Title: