1
EXHIBIT 4.13
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
NEWFIELD EXPLORATION COMPANY
AS DEPOSITOR,
FIRST UNION NATIONAL BANK
AS PROPERTY TRUSTEE,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF __________ ___, ____
NEWFIELD FINANCIAL TRUST __
================================================================================
2
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 ESTABLISHMENT OF THE TRUST . . . . . . . . . . . . . . . . . . 12
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.3. Organizational Expenses . . . . . . . . . . . . . . . . 12
SECTION 2.4. Issuance of the Preferred Securities . . . . . . . . . 12
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of
the Common Securities . . . . . . . . . . . . . . . . . 12
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . 13
SECTION 2.7. Authorization to Enter into Certain Transactions . . . 13
SECTION 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9. Title to Trust Property . . . . . . . . . . . . . . . . 17
ARTICLE 3 PAYMENT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.1. Payment Account . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION . . . . . . . 18
SECTION 4.1. Distributions . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.2. Redemption . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.3. Conversion . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.4. Special Event Exchange or Redemption . . . . . . . . . 23
SECTION 4.5. Subordination of Common Securities . . . . . . . . . . 25
SECTION 4.6. Payment Procedures . . . . . . . . . . . . . . . . . . 25
SECTION 4.7. Tax Returns and Reports . . . . . . . . . . . . . . . . 26
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust . . . . . . 26
SECTION 4.9. Payments under Indenture . . . . . . . . . . . . . . . 26
ARTICLE 5 TRUST SECURITIES CERTIFICATES . . . . . . . . . . . . . . . . 26
SECTION 5.1. Initial Ownership . . . . . . . . . . . . . . . . . . . 26
SECTION 5.2. The Trust Securities Certificates . . . . . . . . . . . 26
SECTION 5.3. Delivery of Trust Securities Certificates . . . . . . . 27
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer . . . . . . . . . 27
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.6. Persons Deemed Securityholders . . . . . . . . . . . . 29
SECTION 5.7. Access to List of Securityholders' Names and Addresses 29
-i-
3
SECTION 5.8. Maintenance of Office or Agency . . . . . . . . . . . . 30
SECTION 5.9. Appointment of Paying Agent . . . . . . . . . . . . . . 30
SECTION 5.10. Ownership of Common Securities by Depositor . . . . . . 31
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate . . . . . . . . . . . . . . . . 31
SECTION 5.12. Notices to Clearing Agency . . . . . . . . . . . . . . 32
SECTION 5.13. Definitive Preferred Securities Certificates . . . . . 32
SECTION 5.14. Rights of Securityholders . . . . . . . . . . . . . . . 33
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING . . . . . . . . . . . 33
SECTION 6.1. Limitations on Voting Rights . . . . . . . . . . . . . 33
SECTION 6.2. Notice of Meetings . . . . . . . . . . . . . . . . . . 35
SECTION 6.3. Meetings of Preferred Securityholders . . . . . . . . . 35
SECTION 6.4. Voting Rights . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.5. Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.6. Securityholder Action by Written Consent . . . . . . . 36
SECTION 6.7. Record Date for Voting and Other Purposes . . . . . . . 36
SECTION 6.8. Acts of Securityholders . . . . . . . . . . . . . . . . 37
SECTION 6.9. Inspection of Records . . . . . . . . . . . . . . . . . 38
ARTICLE 7 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 38
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee . . . . . . . . . . . . . . . 38
SECTION 7.2. Representations and Warranties of Depositor . . . . . . 39
ARTICLE 8 THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.1. Certain Duties and Responsibilities . . . . . . . . . . 39
SECTION 8.2. Notice of Defaults . . . . . . . . . . . . . . . . . . 41
SECTION 8.3. Certain Rights of Property Trustee . . . . . . . . . . 43
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities 45
SECTION 8.5. May Hold Securities . . . . . . . . . . . . . . . . . . 45
SECTION 8.6. Compensation; Indemnity; Fees . . . . . . . . . . . . . 46
SECTION 8.7. Property Trustee Required; Eligibility of Trustees . . 46
SECTION 8.8. Conflicting Interests . . . . . . . . . . . . . . . . . 47
SECTION 8.9. Resignation and Removal; Appointment of Successor . . . 47
SECTION 8.10. Acceptance of Appointment by Successor . . . . . . . . 49
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.12. Preferential Collection of Claims Against Depositor
or Trust . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.13. Reports by Property Trustee . . . . . . . . . . . . . . 50
SECTION 8.14. Reports to the Property Trustee . . . . . . . . . . . . 51
SECTION 8.15. Evidence of Compliance with Conditions Precedent . . . 51
SECTION 8.16. Number of Trustees . . . . . . . . . . . . . . . . . . 51
SECTION 8.17. Delegation of Power . . . . . . . . . . . . . . . . . . 51
-ii-
4
ARTICLE 9 DISSOLUTION, LIQUIDATION AND MERGER . . . . . . . . . . . . . 52
SECTION 9.1. Dissolution upon Expiration Date . . . . . . . . . . 52
SECTION 9.2. Early Dissolution . . . . . . . . . . . . . . . . . . 52
SECTION 9.3. Termination. . . . . . . . . . . . . . . . . . . . 52
SECTION 9.4. Liquidation . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . . . . . . 54
ARTICLE 10 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 55
SECTION 10.1. Limitation of Rights of Securityholders . . . . . . . 55
SECTION 10.2. Amendment . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.3. Separability . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.4. Governing Law . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.5. Payments Due on Non-Business Day . . . . . . . . . . 57
SECTION 10.6. Successors . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.8. Reports, Notices and Demands . . . . . . . . . . . . 57
SECTION 10.9. Agreement Not to Petition . . . . . . . . . . . . . . 58
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.12. Counterparts . . . . . . . . . . . . . . . . . . . . 59
EXHIBIT A -- Certificate of Trust of Newfield Financial Trust __
EXHIBIT B -- Form of Common Securities of Newfield Financial Trust __
EXHIBIT C -- Form of Preferred Securities of Newfield Financial Trust __
EXHIBIT D -- Notice of Conversion
-iii-
5
NEWFIELD FINANCIAL TRUST __*
Certain Sections of this Trust Agreement
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
Section 310 (a)(1) . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . 8.8
Section 311 (a) . . . . . . . . . . . . . . . . 8.12
(b) . . . . . . . . . . . . . . . . 8.12
Section 312 (a) . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . 5.7
Section 313 (a) . . . . . . . . . . . . . . . . 8.13(a)
(c) . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . 8.13(c)
(a)(4) . . . . . . . . . . . . . . . . 8.13(b)
(b) . . . . . . . . . . . . . . . . 8.13(b)
Section 314 (a) . . . . . . . . . . . . . . . . 8.14
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 8.15
(c)(2) . . . . . . . . . . . . . . . . 8.15
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 1.1, 8.15
Section 315 (a) . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 316 (a) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . 6.7
Section 317 (a)(1) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.9
Section 318 (a) . . . . . . . . . . . . . . . . 10.10
--------------------
* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
-iv-
6
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________ ___,
____ among (i) Newfield Exploration Company, a Delaware corporation (including
any successors or assigns, the "Depositor"), (ii) First Union National Bank, a
national banking association, as property trustee (in such capacity, the
"Property Trustee" and, in its personal capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) First Union Trust Company, National
Association, a national association with its place of business in the State of
Delaware, a corporation duly organized and existing under the laws of the State
of Delaware, as Delaware trustee (in such capacity, the "Delaware Trustee"),
(iv) ▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇
▇. ▇▇▇, ▇▇, an individual, each of whose address is c/o Newfield Exploration
Company, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
(each, an "Administrative Trustee" and, collectively, the "Administrative
Trustees" and, collectively with the Property Trustee and the Delaware Trustee,
the "Trustees") and (iv) the several Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have
heretofore duly declared and created a business trust pursuant to the Delaware
Business Trust Act by the entering into of that certain Trust Agreement, dated
as of August 28, 1998 (the "Original Trust Agreement"), and by the execution
and filing by certain of the Trustees with the Secretary of State of the State
of Delaware of the Certificate of Trust, filed on August 28, 1998, attached as
Exhibit A, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in the Debentures (as defined herein); and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance and sale of the Common Securities (as
defined herein) by the Trust to the Depositor, (ii) the issuance and sale of
the Preferred Securities by the Trust pursuant to the Underwriting Agreement
(each as defined herein) and (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders of the Preferred Securities,
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
-1-
7
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust Securities,
the amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Additional Sums" means, with respect to the Trust Securities,
the amount of Additional Sums (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Administrative Trustee" means each of ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇, ▇▇ each solely in his capacity as Administrative
Trustee of the Trust and not in his individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor in interest
in such capacity, or any successor administrative trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person, provided, however that an Affiliate
of the Depositor shall be deemed not to include the Trust. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of [Euroclear and Cedel, and of] the Clearing Agency for
such security, in each case to the extent applicable to such transaction and as
in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
-2-
8
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or
ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of the
Depositor or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Property Trustee or the corporate trust office of
the Debenture Trustee, is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates as the same may be amended and supplemented from time to time.
"Certificated Preferred Security " means a Preferred Security in
registered, certificated form.
-3-
9
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in
the Underwriting Agreement), which date is also the date of execution and
delivery of this Trust Agreement.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, 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 Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit
C.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, par value $.01 per share, of
the Depositor.
"Conversion Agent" has the meaning specified in Section 4.3.
"Conversion Date" has the meaning specified in Section 4.3.
"Conversion Price" has the meaning specified in Section 4.3.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other address as the
Trustee may give notice thereof to the Company, Attention: Corporate Trustee
Administration.
"Current Market Price", with respect to Common Stock, means for
any day the last reported sale price, regular way, on such day, or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the New York
Stock Exchange Composite Transactions Tape, or, if Common Stock is not listed
or admitted to trading on the New York Stock Exchange on such day, on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, if Common Stock is
-4-
10
listed on a national securities exchange, or the Nasdaq National Market, or, if
Common Stock is not quoted or admitted to trading on such quotation system, on
the principal quotation system on which Common Stock may be listed or admitted
to trading or quoted, or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average of the closing
bid and asked prices of Common Stock in the over-the-counter market on the day
in question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so available in such
manner, as furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors for that purpose or, if not so available
in such manner, as otherwise determined in good faith by the Board of
Directors.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption thereof under
the Indenture.
"Debenture Trustee" means First Union National Bank, a national
banking association, as trustee under the Indenture.
"Debentures" means all of the Depositor's _____% junior
convertible subordinated debentures issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (x) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(b) and (y)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et. seq., as it may be amended from time
to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 6.8.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
-5-
11
"Early Dissolution Event" has the meaning specified in Section
9.2.
"Event of Default" means the occurrence of a Debenture Event of
Default, whatever the reason for such Debenture Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" means a Preferred Security that is
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and First Union National Bank, a national banking association,
as guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Junior Convertible Subordinated Indenture,
dated as of __________ ___, ____ between the Depositor and the Debenture
Trustee, as amended or supplemented from time to time.
"Investment Company Event" means the receipt by the Property
Trustee, on behalf of the Trust, of an Opinion of Counsel, rendered by a law
firm having a national tax and securities practice (which Opinion of Counsel
shall not have been rescinded by such law firm), to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
1940 Act, which Change in 1940 Act Law becomes effective on or after the date
of original issuance of the Preferred Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Liquidation Amount" means an amount with respect to the assets
of the Trust equal to $50 per Trust Security.
"Liquidation Date" means each date on which Debentures or cash
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.4(a).
-6-
12
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Conversion" means the notice given by a Holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Security for Debentures and to convert such Debentures
into Common Stock on behalf of such Holder. Such notice is substantially in
the form set forth in Exhibit E.
"Officers' Certificate" means a certificate signed by (i) the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by (ii) the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.15
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee or the Depositor, and who may be
an employee of any thereof, and who shall be acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each individual signing the Opinion of
Counsel has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each individual in rendering
the Opinion of Counsel;
-7-
13
(c) a statement that each individual has made such examination
or investigation as 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 each such
individual, such condition or covenant has been complied with.
"Optional Redemption Price" means with respect to the Preferred
Securities (except as set forth below with respect to redemption upon the
occurrence of a Tax Event), the following percentages of the Liquidation
Amounts thereof, plus accumulated and unpaid Distributions, if any, to the date
fixed for redemption if redeemed during the twelve-month period commencing
_______ __ in each of the following years indicated:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
In the event of a redemption of Trust Securities upon the occurrence of a Tax
Event, Trust Securities shall be redeemed at the redemption price of $50 per
Trust Security and all accumulated and unpaid Distributions, if any, to the
date fixed for redemption.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means,
as of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities
Registrar or delivered to the Securities Registrar for cancellation or
tendered for conversion;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement;
(c) Trust Securities which have been exchanged for Debentures
pursuant to Section 4.4; and
-8-
14
(d) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be fully protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Trust Securities that a Responsible Officer of the
Property Trustee or the Delaware Trustee, or an individual Administrative
Trustee, as the case may be, actually knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
Outstanding Trust Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Trust Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Securities Registrar the pledgee's right so to act
with respect to such Trust Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-
Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9.
"Payment Account" means a segregated non-interest bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with Section
4.1.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount with respect to the assets
of the Trust of $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
-9-
15
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $50
per Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Responsible Officer" means any officer assigned to the Corporate
Trust Office, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Trust Agreement, and also, with respect to a particular
matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is registered in the Securities Register; any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Special Event" means a Tax Event or an Investment Company Event.
"Successor Property Trustee" has the meaning specified in Section
8.9.
"Successor Delaware Trustee" has the meaning specified in Section
8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Super Majority" has the meaning specified in Section 8.2.
"Tax Event" means the receipt by the Property Trustee, on behalf
of the Trust, of an Opinion of Counsel, rendered by a law firm having a
national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any
-10-
16
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement and does not pertain to the
use of the proceeds of the issuance of the Debentures, there is more than an
insubstantial risk in each case after the date thereof that (i) the Trust is,
or will be within 90 days after the date thereof, subject to United State
Federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Depositor on the Debentures is not, or
will not be, within 90 days after the date thereof, deductible, in whole or in
part, for United States Federal income tax purposes or (iii) the Trust is, or
will be within 90 days after the date thereof, subject to more than de minimus
amount of other taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page of this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Trust Agreement any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing to be held by the Property Trustee pursuant to the
terms of this Trust Agreement for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates, the Global Certificates or the Certificated Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriters" with respect to the Preferred Securities, means
__________________.
-11-
17
"Underwriting Agreement" means the Underwriting Agreement dated
as of ________ __, ____ among the Trust, the Depositor and the Underwriters
named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as
"Newfield Financial Trust I", as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is One
▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trustee Administration Department, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.3. Organizational Expenses. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. The
Depositor on behalf of the Trust has executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, in an aggregate
amount of ___________ Preferred Securities having an aggregate Liquidation
Amount of $__________, against receipt of the aggregate purchase price of such
Preferred Securities of $__________, which amount the Administrative Trustees
shall promptly deliver to the Property Trustee.
SECTION 2.5. Subscription and Purchase of Debentures; Issuance
of the Common Securities. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in
the name of the Property Trustee (in its capacity as such) and having an
aggregate principal amount equal to $__________, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the sum of $__________, Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates registered in the name of the Depositor, in an aggregate amount of
__________ Common Securities having an aggregate Liquidation Amount of
$__________ against
-12-
18
receipt of the aggregate purchase price of such Common Securities from the
Depositor of the sum of $__________.
SECTION 2.6. Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, (b) to distribute the
Trust's income as provided in this Trust Agreement 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,
mortgage or pledge any of its assets 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. The Depositor
hereby appoints the Trustees as trustees of the Trust, to have all the rights,
powers and duties to the extent set forth herein, and the Trustees hereby
accept such appointment. The Property Trustee hereby declares that it will
hold the Trust Property in trust upon and subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The Administrative
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of
the Trust. The Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in Section
2.6 and paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the exclusive power, duty and
the authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) to issue and sell the Trust Securities, provided,
however, that the Trust may issue no more than one series of
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 Trust Securities, and the
issuance of Trust Securities shall be limited to simultaneous
issuance of both Preferred Securities and Common Securities on
the Closing Date and any other date Preferred Securities and
Common Securities are sold pursuant to the over-allotment option
granted to the Underwriters named in the Underwriting Agreement,
subject to the issuance of Trust Securities pursuant to Section
5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Certificate
Depository Agreement and such other
-13-
19
agreements as may be necessary or incidental to the purposes and
function of the Trust;
(C) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification of
this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges, if any, as
shall be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of 1934,
as amended, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing (only
to the extent that such listing or registration is requested by
the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar
and an authenticating agent in accordance with this Trust
Agreement;
(F) to the extent provided in this Trust Agreement, to
wind up the affairs of and liquidate the Trust and prepare,
execute and file the certificate of cancellation with the
Secretary of State of the State of Delaware;
(G) unless otherwise required by applicable law, to
execute on behalf of the Trust (either acting alone or together
with any other Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to
this Trust Agreement; and
(H) to take any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
1940 Act;
(ii) causing the Trust to be classified for
United States Federal income tax purposes as a grantor
trust; and
(iii) cooperating with the Depositor to ensure
that the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes;
provided that such action does not adversely affect in any
material respect the interests of Securityholders except as
otherwise provided in Section 10.2(a).
-14-
20
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(D) the distribution from the Trust Property of amounts
owed to the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default, other notices
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder);
(J) subject to this Section 2.7(a)(ii), the Property
Trustee shall have none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth in Section
2.7(a)(i); and
(K) to act as Paying Agent and/or Securities Registrar
to the extent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees
shall not and shall cause the Trust not to, (i) invest any proceeds received by
the Trust from holding
-15-
21
the Debentures (rather, the Trustees shall distribute all such proceeds to the
Securityholders pursuant to the terms of this Trust Agreement and the Trust
Securities), acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided herein,
(iii) take any action that would cause the Trust to fail or cease to qualify as
a "grantor trust" for United States Federal income tax purposes, (iv) make any
loans or incur any indebtedness for borrowed money or issue any other debt, (v)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property, (vi) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the Trust Securities in any way
whatsoever except as permitted by the terms of this Trust Agreement, or (vii)
issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Trust Securities. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following actions
(and any actions taken by the Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to file by the Trust with the Commission and to execute on
behalf of the Trust one or more registration statements on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the States and foreign jurisdictions in which
to take appropriate action to qualify or register for resale all or part
of the Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the Trust, and prepare
for execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States
and foreign jurisdictions;
(iii) to the extent necessary, to prepare for filing by the
Trust with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto (it
being understood that neither the Trust nor the Depositor has any
obligation under the Indenture, the Underwriting Agreement or the Trust
Agreement to register any Trust Securities under the Securities Exchange
Act of 1934, as amended or to list any Trust Securities on any
securities exchange);
(iv) to negotiate, and to execute and deliver, on behalf of the
Trust, the Underwriting Agreement;
-16-
22
(v) to list the Preferred Securities upon such securities
exchange or exchanges, if any, as shall be determined by the Depositor
and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing; and
(vi) any other actions necessary or incidental to carrying out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be registered under the 1940 Act, or taxed
as a corporation for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust Agreement, that
each of the Depositor and the Administrative Trustees determines in their
discretion to be necessary or desirable for such purposes, so long as such
action does not adversely affect in any material respect the interests of the
Holders of the Preferred Securities except as otherwise provided in Section
10.2(a).
SECTION 2.8. Assets of Trust. The assets of the Trust shall
consist of only the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust
Agreement. The Securityholders 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.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in
the Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect
-17-
23
to, the Debentures. Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions. (a) Distributions on the Trust
Securities shall be cumulative, and shall accrue from the date of original
issuance of any Trust Securities, or the most recent Distribution Date (as
defined herein) and, except in the event that the Depositor exercises its right
to defer the payment of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly in arrears on _______ __, _______ __, _______ __ and
_______ __ of each year, commencing on _______ __, ____ (which dates correspond
to the interest payment dates on the Debentures), when, as and if available for
payment by the Property Trustee, as further described in paragraph (c) of this
Section 4.1. If any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such Distributions
shall be made on the next succeeding day which is a Business Day (and no
interest shall accrue for the period from and after such date until the next
succeeding Business Day) with the same force and effect as if made on such date
(each date on which Distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and the Distributions on the Trust Securities
shall be payable at a rate of _____% per annum of the Liquidation Amount of the
Trust Securities, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. The amount of Distributions
payable for any period shall be computed on the basis of a 360-day year of
twelve 30-day months. For periods less than a full month, Distributions shall
reflect interest on Debentures computed on the basis of the actual number of
elapsed days based on a 360-day year. The amount of Distributions payable for
any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the date which is the fifteenth day (whether or not a Business Day)
next preceding such Distribution Date.
SECTION 4.2. Redemption. (a) Upon an optional redemption (as
set forth in the Indenture) of Debentures, the proceeds from such redemption
shall be applied to redeem Trust Securities having an aggregate Liquidation
Amount equal to the aggregate principal amount of the Debentures so redeemed by
the Depositor, including pursuant to Section 4.4, at the Optional
-18-
24
Redemption Price, and upon a mandatory redemption (as set forth in the
Indenture) of Debentures, the proceeds from such redemption shall be applied to
redeem Trust Securities, having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Debentures so redeemed by the Depositor, at
the Redemption Price. The Trust may not redeem fewer than all the Outstanding
Trust Securities unless all accrued and unpaid Distributions have been paid on
all Trust Securities for all quarterly Distribution periods terminating on or
prior to the date of redemption.
(b) Notice of redemption (which notice will be irrevocable)
shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date to
the Depositor and each Holder of Trust Securities to be redeemed, at such
Holder's address as it appears in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the record date for the determination of Holders entitled
to receive payment of the Redemption Price or Optional Redemption Price,
as the case may be, as provided in Section 4.2(d);
(iv) the CUSIP number;
(v) if less than all of the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(vi) the Conversion Price and that a Holder of Preferred
Securities who desires to convert such Preferred Securities called for
redemption must satisfy the requirements for conversion contained in
Section 4.3 below;
(vii) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
(viii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price or the Optional Redemption Price, as
the case may be, with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price or the Optional Redemption Price, as the case may be, shall be
-19-
25
payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price or the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 4.2(c), the Property Trustee will,
so long as and to the extent the Preferred Securities are in book-entry-only
form, irrevocably deposit with the Clearing Agency for the Preferred Securities
funds sufficient to pay the applicable Redemption Price. If the Preferred
Securities are no longer in book-entry-only form, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price or Optional Redemption Price,
as the case may be, on such Preferred Securities held in definitive form and
will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price or the Optional Redemption Price, as the case may be, to the
Holders thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except (i) the right of such Securityholders to receive the Redemption Price or
the Optional Redemption Price, as the case may be, but without interest, and
(ii) the right to convert such Preferred Securities into Common Stock in the
manner provided in Section 4.3 through the close of business on the Redemption
Date; and such Trust Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price or the Optional Redemption Price,
as the case may be, is payable is not a Business Day, then payment of the
Redemption Price or the Optional Redemption Price, as the case may be, payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date. Payment of the
Redemption Price or the Optional Redemption Price, as the case may be, shall be
made to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the date which is the fifteenth day (whether or not a Business Day) preceding
such Redemption Date.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis (based
on Liquidation Amounts) among the Common Securities and the Preferred
Securities that are to be redeemed. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, by lot or by such other method as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $50 or an integral multiple of
$50 in excess thereof)
-20-
26
of the Liquidation Amount of the Preferred Securities. The Property Trustee
shall promptly notify the Securities Registrar and the Conversion Agent in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed; it being understood that, in the case of
Preferred Securities registered in the name of and held of record by the
Clearing Agency (or any successor) or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the procedures of
the Clearing Agency or its nominee. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to be redeemed.
In the event of any redemption in part, the Trust shall not be required to (i)
issue, register the transfer of or exchange of any Preferred Security during a
period beginning at the opening of business 15 days before any selection for
redemption of Preferred Securities and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all Holders of Preferred Securities to be so redeemed or (ii) register
the transfer of or exchange of any Preferred Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Preferred Securities being redeemed in part.
(f) In the event of any redemption, the Trust shall not be
required to issue, register the transfer of or register the exchange of any
Preferred Security during a period beginning at the opening of business 15 days
before any Redemption Date and ending at the close of business on such
Redemption Date.
SECTION 4.3. Conversion. The Holders of Trust Securities,
subject to the limitations set forth in this Section, shall have the right, at
their option, to cause the Conversion Agent to convert Trust Securities, on
behalf of the converting Holders, into shares of Common Stock in the manner
described herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully paid
and nonassessable shares of Common Stock pursuant to the Holder's
direction to the Conversion Agent to exchange such Trust Securities for
a portion of the Debentures having a principal amount equal to the
aggregate Liquidation Amount of such Trust Securities, and immediately
convert such amount of Debentures into fully paid and nonassessable
shares of Common Stock at an initial rate of _____ shares of Common
Stock for each Trust Security (which is equivalent to a conversion price
of approximately $_____ per share of Common Stock), subject to certain
adjustments set forth in the Indenture (as so adjusted, "Conversion
Price").
(ii) In order to convert Trust Securities into Common Stock,
the Holder of such Trust Securities shall submit to the Conversion Agent
an irrevocable Notice of Conversion to convert Trust Securities on
behalf of such Holder, together, if the Trust Securities are in
certificated form, with such certificates. The Notice of Conversion
shall (i) set forth the number of Trust Securities to be converted and
the name or names, if other than the Holder, in which the shares of
Common Stock should be issued and (ii) direct the Conversion Agent
-21-
27
(a) to exchange such Trust Securities for a portion of the Debentures
held by the Property Trustee (at the rate of exchange specified in the
preceding paragraph) and (b) to immediately convert such Debentures, on
behalf of such Holder, into Common Stock (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall
notify the Property Trustee in writing of the Holder's election to
exchange Trust Securities for a portion of the Debentures held by the
Property Trustee and the Property Trustee shall, upon receipt of such
written notice, deliver to the Conversion Agent the appropriate
principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify the Depositor of
the Holder's election to convert such Debentures into shares of Common
Stock. Holders of Trust Securities at the close of business on a
Distribution payment record date will be entitled to receive the
Distribution paid on such Trust Securities on the corresponding
Distribution Date notwithstanding the conversion of such Trust
Securities on or following such record date but prior to such
Distribution Date. Except as provided above, neither the Trust nor the
Depositor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions whether or not in arrears accrued on the Trust Securities
surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Common Stock issued upon such conversion.
Trust Securities submitted for conversion prior to the expiration of
conversion rights as provided in Section 4.3(iii) shall be deemed to
have been converted immediately prior to the close of business on the
day on which an irrevocable Notice of Conversion relating to such Trust
Securities is received by the Conversion Agent in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons
entitled to receive the Common Stock issuable upon conversion of the
Debentures shall be treated for all purposes as the record holder or
holders of such Common Stock on the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Depositor shall issue
and deliver at the office of the Conversion Agent a certificate or
certificates for the number of full shares of Common Stock issuable upon
such conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the
same, unless otherwise directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.
(iii) The conversion rights of holders of the Debentures and the
corresponding conversion rights of Holders of Trust Securities shall
expire at the close of business on the date set for redemption of the
Trust Securities upon the mandatory or optional redemption of the
Debentures.
(iv) Each Holder of a Trust Security by its acceptance thereof
initially appoints First Union National Bank not in its individual
capacity but solely as conversion agent (the "Conversion Agent") for the
purpose of effecting the conversion of Trust Securities in accordance
with this Section. In effecting the conversion and transactions
described in this Section, the Conversion Agent shall be acting as agent
of the Holders of Trust Securities directing it to effect such
conversion transactions. The Conversion Agent is hereby
-22-
28
authorized (i) to exchange Trust Securities from time to time for
Debentures held by the Trust in connection with the conversion of such
Trust Securities in accordance with this Section and (ii) to convert all
or a portion of the Debentures into Common Stock and thereupon to
deliver such shares of Common Stock in accordance with the provisions of
this Section and to deliver to the Property Trustee any new Debenture or
Debentures for any resulting unconverted principal amount delivered to
the Conversion Agent by the Debenture Trustee.
(v) No fractional shares of Common Stock will be issued as a
result of conversion, but, in lieu thereof, such fractional interest
will be paid in cash by the Depositor to the Conversion Agent in an
amount equal to the Current Market Price of the fractional share of the
Common Stock, and the Conversion Agent will in turn make such payment to
the Holder or Holders of Trust Securities so converted.
(vi) Nothing in this Section 4.3 shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Trust
Securities or as set forth in this Trust Agreement or otherwise required
of the Property Trustee or the Trust to pay any amounts on account of
such withholdings.
SECTION 4.4. Special Event Exchange or Redemption. (a) If a
Special Event shall occur and be continuing, the Property Trustee shall direct
the Conversion Agent to exchange all Outstanding Trust Securities for
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Trust Securities to be exchanged and with accrued interest in an amount
equal to any unpaid Distribution (including any Additional Amounts) on the
Trust Securities; provided, however, that, in the case of a Tax Event, the
Depositor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as the
Depositor shall have elected to pay any Additional Sums (as defined in the
Indenture) such that the amount received by Holders of Trust Securities not so
exchanged in respect of Distributions and other distributions are not reduced
as a result of such Tax Event, and shall not have revoked any such election or
failed to make such payments or (ii) cause the Trust Securities to be redeemed
in the manner set forth below. If a Tax Event shall occur or be continuing,
the Depositor shall have the right, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures, in whole or in part, for cash upon the
later of (i) 90 days following the occurrence of such Tax Event or (ii) _______
__, ____. Promptly following such redemption, Trust Securities with an
aggregate Liquidation Amount equal to the aggregate principal amount of the
Debentures so redeemed will be redeemed by the Trust at the Optional Redemption
Price applicable in the event of a redemption upon the occurrence of a Tax
Event on a pro rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an
"Exchange Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to the
Depositor and to each record Holder of Trust Securities to be exchanged not
fewer than 30 nor more than 60 days prior to the date fixed for exchange
thereof. For purposes of the calculation of the date of exchange and the dates
on which notices are given pursuant
-23-
29
to this paragraph (b), an Exchange Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to each
Holder. Each Exchange Notice shall be addressed to each Holder of Trust
Securities at the address of such Holder appearing in the books and records of
the Trust. Each Exchange Notice shall state: (A) the exchange date; (B) the
aggregate Liquidation Amount and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so exchanged
shall be exchanged for Debentures and that Distributions on the Trust
Securities so exchanged will cease to accumulate on and after said date; (D)
the record date for the determination of Holders of Trust Securities to be
exchanged as provided in Section 4.4(g); and (E) the identity of the Conversion
Agent, if any, and the place or places where each Trust Certificate to be
exchanged is to be surrendered in exchange for Debentures. No defect in the
Exchange Notice or in the mailing thereof with respect to any Trust Security
shall affect the validity of the exchange proceedings for any other Trust
Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of the
Outstanding Preferred Securities are represented by Definitive Preferred
Securities Certificates, the particular Preferred Securities to be exchanged
will be selected by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption or exchange on a pro rata
basis, (ii) if all of the Outstanding Preferred Securities are represented by
Book-Entry Preferred Securities Certificates, the Property Trustee shall
provide for the selection for exchange of a portion of the Global Certificate
representing the Book-Entry Preferred Securities Certificates on a pro rata
basis and (iii) if Outstanding Preferred Securities are represented by both
Definitive Preferred Securities Certificates and Book-Entry Preferred
Securities Certificates, the Property Trustee shall select the portion of the
Global Certificate representing the Book-Entry Preferred Securities
Certificates and the particular Outstanding Preferred Securities represented by
Definitive Preferred Securities Certificates to be exchanged on a pro rata
basis. In the case of clause (ii) or (iii) above, the particular Book-Entry
Preferred Securities Certificates to be exchanged shall be selected in
accordance with the applicable rules and procedures for the Clearing Agency in
whose name, or whose nominee's name, such global certificate is then held. Any
Preferred Securities Certificate that is to be exchanged only in part shall be
surrendered with due endorsement or by a written instrument of transfer fully
executed by the Holder thereof (or its attorney duly authorized in writing) and
the Trust shall prepare and deliver to such Holder, without service charge, a
new Preferred Securities Certificate or Certificates in aggregate stated
Liquidation Amount equal to, and in exchange for, the unredeemed portion of the
Preferred Securities Certificate so surrendered. The Common Securities shall
be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4,
on the date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing
Agency or its nominee, as the record Holder of the Preferred Securities, will
exchange through the Conversion Agent the Global Certificate representing the
Preferred Securities to be exchanged for a registered Global Certificate or
certificates representing the
-24-
30
Debentures to be delivered upon such exchange, (ii) if the Preferred Securities
are represented by Definitive Preferred Securities Certificates, the
certificates representing the Preferred Securities to be so exchanged will be
deemed to represent Debentures having a principal amount equal to the aggregate
stated Liquidation Amount of such Preferred Securities until such certificates
are presented to the Conversion Agent for exchange for definitive certificates
representing Debentures and (iii) all rights of the Holders of the Preferred
Securities so exchanged will cease, except for the right of such Holders to
receive Debentures. The Common Securities shall be exchanged in a similar
manner.
(e) Each Holder, by becoming a party to this Trust Agreement
pursuant to Section 10.11 of this Trust Agreement, will be deemed to have
agreed to be bound by these exchange provisions in regard to the exchange of
Trust Securities for Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Trust Agreement or otherwise require the Property Trustee or
the Trust to pay any amounts on account of such withholdings.
(g) An exchange of Trust Securities for Debentures pursuant to
this Section 4.4 shall be made to Holders of Trust Securities as they appear on
the Securities Register for Trust Securities on the relevant record date, which
shall be the date that is the fifteenth day (whether or not a Business Day)
preceding the exchange date.
SECTION 4.5. Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date an Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or the Redemption Price of,
any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Preferred Securities for
all Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due
and payable.
SECTION 4.6. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency in immediately available funds, in
accordance with the Certificate Depository Agreement on the applicable
Distribution Dates.
-25-
31
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.7. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States Federal, State and local tax and information returns
and reports required to be filed by or in respect of the Trust. In this regard,
the Administrative Trustees shall (a) prepare and file (or cause to be prepared
or filed) Form 1041 or the appropriate Internal Revenue Service form required
to be filed in respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to each
Securityholder a Form 1099 or the appropriate Internal Revenue Service form
required to be furnished to such Securityholder or the information required to
be provided on such form. The Administrative Trustees shall provide the
Depositor with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon
receipt under the Debentures of Additional Sums, the Property Trustee, upon
receipt of written notice from the Depositor or the Administrative Trustees,
shall promptly pay from such Additional Sums any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the
Trust by the United States or any other taxing authority.
SECTION 4.9. Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced by the amount
of any corresponding payment such Holder (or any Owner with respect thereto)
has directly received pursuant to Section 5.8 of the Indenture in accordance
with the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the Trust
and until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $50
Liquidation Amount and integral multiples of $50 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $50
Liquidation Amount and integral multiples thereof. The consideration received
by the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. Preferred Securities initially will be represented by one or more
certificates in registered, global form (the "Global Certificate"). The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and authenticated by
the Property Trustee. Trust Securities
-26-
32
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust, shall be validly issued and entitled to the
benefit of this Trust Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.4.
SECTION 5.3. Delivery of Trust Securities Certificates. On the
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4
and 2.5, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor, signed by its Chairman of the Board, any Vice
Chairman, its President, any Senior Vice President or any Vice President,
Treasurer or Assistant Treasurer or Controller without further corporate action
by the Depositor, in authorized denominations.
A Trust Security Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the Trust
Security Certificate has been authenticated under this Trust Agreement. Upon a
written order of the Trust signed by one Administrative Trustee, the Property
Trustee shall authenticate the Trust Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust Security
Certificates. An authenticating agent may authenticate Trust Security
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as
the Property Trustee to deal with the Depositor or an Affiliate with respect to
the authentication of Trust Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer. (a) The Securities Registrar
("Securities Registrar") shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a Securities Register ("Securities
Register") in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Property Trustee shall be the initial Securities
Registrar.
Subject to the other provisions of this Trust Agreement regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security at an office or agency of the Securities Registrar
designated pursuant to Section 5.8 for such purpose, an Administrative Trustee
shall execute on behalf of the Trust by manual or facsimile signature, and the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one
-27-
33
or more new Preferred Securities of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Trust Agreement.
At the option of the Holder, and subject to the other provisions
of this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount,
upon surrender of the Preferred Securities to be exchanged at any such office
or agency. Whenever any Preferred Securities are so surrendered for exchange,
an Administrative Trustee shall execute on behalf of the Trust by manual or
facsimile signature, and the Property Trustee shall authenticate and deliver,
the Preferred Securities which the Holder making the exchange is entitled to
receive.
All Preferred Securities issued upon any registration of transfer
or exchange of Preferred Securities shall be entitled to the same benefits
under this Trust Agreement, as the Securities surrendered upon such
registration of transfer or exchange.
Every Preferred Security presented or surrendered for
registration of transfer or for exchange shall (if so requested by the
Depositor or the Securities Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Depositor and the
Securities Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Trust Agreement or the Preferred Securities, transfers
and exchanges of Preferred Securities and beneficial interests in a Global
Certificate of the kind specified in this Section 5.4(b) shall be made only in
accordance with this Section 5.4(b).
(i) Non-Global Certificate to Global Certificate. If the
Holder of a Preferred Security (other than a Global Certificate) wishes
at any time to transfer all or any portion of such Preferred Security to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Global Certificate, such transfer may be effected only
in accordance with the provisions of this Clause (b)(i) and Clause
(b)(ii) below and subject to the Applicable Procedures. Upon receipt by
the Property Trustee, as Securities Registrar, of (A) such Security as
provided in Section 5.4(a) and written instructions satisfactory to the
Property Trustee directing that a beneficial interest in a Global
Certificate in a specified Liquidation Amount (or number of Preferred
Securities) not greater than the amount of such Preferred Security be
credited to a specified participant's account and (B) a Preferred
Securities Certificate satisfactory to the Property Trustee and duly
executed by such Holder or his attorney duly authorized in writing, then
the Property Trustee, as Securities Registrar but subject to Clause
(b)(ii) below, shall cancel such Preferred Security Certificate (and
issue
-28-
34
a new Preferred Security Certificate in respect of any untransferred
portion thereof) as provided in Section 5.4(a) and increase the
Liquidation Amount of (or number of Preferred Securities represented by)
the Global Certificate, as the case may be, by the specified Liquidation
Amount (or number of Preferred Securities) as provided in Section
5.11(b).
(ii) Non-Global Certificate to Non-Global Certificate. A
Preferred Security that is not a Global Certificate may be transferred,
in whole or in part, to a Person who takes delivery in the form of
another Preferred Security that is not a Global Certificate as provided
in Section 5.11.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction, loss
or theft of any Trust Securities Certificate and (b) there shall be delivered
to the Securities Registrar and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust shall execute and make available for
authentication and delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicative Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders. The Property
Trustee and the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and
Addresses. The Administrative Trustees or the Depositor shall furnish or cause
to be furnished (unless the Property Trustee is acting as Securities Registrar
with respect to the Trust Securities under the Trust Agreement) a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Securityholders as of the most recent record date (a) to the Property
Trustee, quarterly at least 5 Business Days before each Distribution Date, and
(b) to the Property Trustee, promptly after receipt by the Depositor of a
written request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, in
each case to the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to
-29-
35
communicate with other Securityholders with respect to their rights under this
Trust Agreement or under the Trust Securities, and the corresponding rights of
the Trustee shall be as provided in the Trust Indenture Act, except to the
extent Section 3819 of the Delaware Business Trust Act would require greater
access to such information, in which case the latter shall apply. Each Holder
shall not hold the Depositor, the Property Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Securities
Registrar shall maintain in [The City of New York] an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer, exchange or conversion and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Securities Registrar initially designates
______________________________, Attention: Corporate Trustee Administration
Department, as its principal corporate trust office for such purposes. The
Securities Registrar shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.9. Appointment of Paying Agent. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
in the [Borough of Manhattan, City of New York], an office or agency (the
"Paying Agent") where the Preferred Securities may be presented for payment.
The Paying Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent shall initially be the Property Trustee, and any co-paying agent chosen
by the Property Trustee and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Depositor. In the event that the Property Trustee shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority to act
be revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). Each successor Paying Agent or any
additional Paying Agent shall agree with the Trustees that, as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to each
Securityholder. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
-30-
36
SECTION 5.10. Ownership of Common Securities by Depositor. On
the Closing Date, the Depositor shall acquire beneficial and record ownership
of the Common Securities. The Depositor has covenanted in the Indenture to
maintain directly or indirectly 100% ownership of the Common Securities,
provided that any permitted successor of the Company under the Indenture may
succeed to the Company's ownership of the Common Securities. To the fullest
extent permitted by law, any attempted transfer of the Common Securities in
violation of that covenant shall be void. The Administrative Trustees shall
cause each Common Securities Certificate to contain a legend stating, "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY NEWFIELD
EXPLORATION COMPANY OR TO CERTAIN SUCCESSORS OF NEWFIELD EXPLORATION COMPANY."
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate. (a) Each Global Certificate authenticated under this
Trust Agreement shall be registered in the name of the Clearing Agency
designated by the Depositor for such Global Certificate or a nominee thereof
and delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Global Certificate shall constitute a Preferred
Security for all purposes of this Trust Agreement.
(b) If a Global Certificate is to be exchanged for
Certificated Preferred Securities or canceled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its nominee or custodian to the
Property Trustee, as Securities Registrar, for exchange or cancellation as
provided in this Article 5. If any Global Certificate is to be exchanged for
Certificated Preferred Securities or cancelled in part, or if another Preferred
Security is to be exchanged in whole or in part for a beneficial interest in
any Global Certificate, in each case, as provided in Section 5.4, then either
(i) such Global Certificate shall be so surrendered for exchange or
cancellation as provided in this Article 5 or (ii) the principal amount thereof
(or number of Preferred Securities represented thereby) shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
cancelled, or equal to the principal amount of (or number of securities
represented by) such Certificated Preferred Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Property Trustee, as Securities
Registrar, whereupon the Property Trustee, in accordance with the Applicable
Procedures, shall instruct the Clearing Agency or its authorized representative
to make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Certificate, an Administrative Trustee shall execute on
behalf of the Trust by manual or facsimile signature, and the Property Trustee
shall, subject to Section 5.4 and as otherwise provided in this Article 5,
authenticate and deliver any Preferred Securities issuable in exchange for such
Global Certificate (or any portion thereof) to or upon the written order of,
and registered in such names as may be directed by, the Clearing Agency or its
authorized representative. Upon the request of the Property Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Depositor shall promptly make available to the Property Trustee
a reasonable supply of Preferred Securities that are not in the form of Global
Certificates. The Property Trustee shall be entitled to conclusively rely upon
any order, direction or request of the Clearing Agency or its authorized
-31-
37
representative which is given or made pursuant to this Article 5 if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Certificate, unless such Preferred Security is registered in the name of
a Person other than the Clearing Agency for such Global Certificate or a
nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of
a Global Certificate, shall be the holder of such Global Certificate for all
purposes under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such Owner's beneficial
interest in a Global Certificate will be shown only on, and the transfer of
such interest shall be effected only through, records maintained by the
Clearing Agency or its nominee or its participants and such owners of
beneficial interests in a Global Certificate will not be considered the owners
or Holders of such Global Certificate for any purpose of this Trust Agreement
or the Preferred Securities.
(e) A single Common Securities Certificate representing the
Common Securities shall initially be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall give
all such notices and communications specified herein to be given to Owners to
the Clearing Agency, and shall have no obligations to provide notices directly
to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Trust Agreement, no Global
Certificate may be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Global Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Certificate or a nominee thereof unless (i) such Clearing Agency (A) has
notified the Trust and the Depositor that it is unwilling or unable to continue
as Clearing Agency for such Global Certificate or (B) has ceased to be a
clearing agency registered as such under the Securities Exchange Act of 1934,
as amended, and in either case the Trust and the Depositor thereupon fail to
appoint a successor Clearing Agency, (ii) the Administrative Trustees, on
behalf of the Trust, and the Depositor, at their option, notify the Property
Trustee in writing that they elect to cause the issuance of the Preferred
Securities in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default. In all cases, Certificated Preferred
Securities delivered in exchange for any Global Certificate or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Clearing Agency (in accordance
with its customary procedures).
-32-
38
SECTION 5.14. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity
as such) in accordance with Section 2.9, and the Securityholders shall not have
any right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or similar
rights and, when issued and delivered to Securityholders against payment of the
purchase price therefor, will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. The Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
provided in this Section, in Section 8.2 and 10.2 and in the Indenture and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with
respect to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the occurrence of
an Event of Default with respect to the Preferred Securities and ending on the
date when such Event of Default is cured, waived or otherwise eliminated, or
(y) any period not described in either the preceding sentence or the preceding
clause (x), the provisions of Section 6.1(b)(i) shall apply.
(i) The Holders of a majority in aggregate Liquidation Amount
of the Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee or to exercise any trust or power conferred upon
the Property Trustee under the Trust Agreement, including the right to
direct the Property Trustee to exercise the remedies available to it as
a holder of the Debentures but excluding the right to direct the
Property Trustee to consent to an amendment, modification or termination
of the Indenture (which shall be as provided below). So long as any
Debentures are held by the Property Trustee, the Trustees shall not (A)
direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such
Debentures, (B) waive any past default which is waivable under Section
5.13 of the
-33-
39
Indenture, (C) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the Holders
of a majority in aggregate Liquidation Amount of all Trust Securities,
voting together as a single class); provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. The Property Trustee shall notify all Holders of
record of the Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only
after the Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated the Holders of a majority in
aggregate Liquidation Amount of the Common Securities will have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or to exercise any
trust or power conferred upon the Property Trustee under the Trust
Agreement, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures but
excluding the right to direct the Property Trustee to consent to an
amendment, modification or termination of the Indenture (which shall be
as provided below). So long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.13 of the Indenture, (C) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures, where
such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a majority in aggregate Liquidation
Amount of all Common Securities (except in the case of clause (D), which
consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of a majority in aggregate
Liquidation Amount of all Trust Securities, voting together as a single
class); provided, however, that where a consent under the Indenture
would require the consent of each holder of Debentures affected thereby,
no such consent
-34-
40
shall be given by the Property Trustee without the prior written consent
of each Holder of Common Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Common Securities, except by a subsequent vote of the Holders of the
Common Securities. The Property Trustee shall notify all Holders of
record of the Common Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(iii) The provisions of this Section 6.1(b) and Section 6.1(a)
of this Trust Agreement shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act, and such Section 316(a)(1)(A) is hereby expressly
excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of a
majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities.
SECTION 6.2. Notice of Meetings. Notice of all meetings of the
Holders of the Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.8 to
each Preferred Securityholder of record, at its registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. Meetings of Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any
matter upon the written request of the Preferred Securityholders of record of
25% of the Preferred Securities (based upon their Liquidation Amount), and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of Preferred Securities to vote on
any matters as to which such Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based upon
their Liquidation Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
-35-
41
If a quorum is present at a meeting, an affirmative vote by the
Holders of record of Preferred Securities present, in person or by proxy,
holding a majority of the Preferred Securities (based upon their Liquidation
Amount) held by Holders of record of Preferred Securities present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a different number of
affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled
to one vote for each $50 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote. Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Depositor, the
Trustees or any Affiliate of any Trustee shall, for purposes of such vote or
consent, be treated as if such Preferred Securities were not outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of Securityholders,
any Securityholders entitled to vote thereat may vote by proxy, provided that
no proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of
record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or
represented by proxy in respect of such Trust Securities, but if more than one
of them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such
vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Securityholder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more than
three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without
a meeting if Securityholders holding a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and
to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
-36-
42
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Trust Agreement and (subject to
Section 8.1) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the Securityholder
of every Trust Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance thereon, whether
or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder
or Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
Holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as Holder of
-37-
43
the Debentures against the Depositor. If the Property Trustee fails to enforce
its rights as Holder of the Debentures after a request therefor by a Holder of
Preferred Securities, such Holder may, to the fullest extent permitted by law,
proceed to enforce such rights directly against the Depositor. Notwithstanding
the foregoing, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Depositor to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the Redemption Date), then a Holder
of Preferred Securities shall have the right to institute a proceeding directly
against the Depositor, for enforcement of payment to such holder of the
principal amount of or interest on Debentures having a principal amount equal
to the aggregate Liquidation Amount of the Preferred Securities of such holder
after the respective due date specified in the Debentures (a "Direct Action").
In connection with any such Direct Action, the Depositor will be subrogated to
the rights of any Holder of the Preferred Securities to the extent of any
payment made by the Depositor to such Holder of Preferred Securities as a
result of such Direct Action.
SECTION 6.9. Inspection of Records. Upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware
Trustee, each severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the Securityholders that (each
such representation and warranty made by the Property Trustee and the Delaware
Trustee being made only with respect to itself):
(a) the Property Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America;
(b) the Delaware Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America;
(c) each of the Property Trustee and the Delaware Trustee has
full corporate power, authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and has taken all necessary action
to authorize the execution, delivery and performance by it of this Trust
Agreement;
(d) this Trust Agreement has been duly authorized, executed
and delivered by each of the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of the Property Trustee and
the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
-38-
44
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(e) the execution, delivery and performance by each of the
Property Trustee and the Delaware Trustee of this Trust Agreement have been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate either of the Property
Trustee's or the Delaware Trustee's charter or by-laws or (ii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, corporate, or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and will have been duly
and validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture Act.
The Property Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties and obligations as are specifically set
forth in this Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee
or the Delaware Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 8.2) of which a Responsible
Officer of the Property Trustee has actual knowledge, the Property Trustee
shall exercise such rights and powers vested in it by this Trust Agreement and
the Trust Indenture Act, and use the same degree of care and skill in its
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise
-39-
45
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers. Whether or not
therein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions of this Section. Nothing in this
Trust Agreement shall be construed to release the Trustees from liability for
their own grossly negligent action, their own grossly negligent failure to act,
or their own willful misconduct. To the extent that, at law or in equity, a
Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Trustee shall not be
liable to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities of
the Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Securityholders to replace such other duties and liabilities
of the Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder shall look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust Agreement
or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) 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 a majority in aggregate
Liquidation Amount of the Trust Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such property as fiduciary assets,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
-40-
46
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law;
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor; and
(vi) the Property Trustee shall have no duty or liability with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments thereon or in
connection therewith.
SECTION 8.2. Notice of Defaults. (a) Within ten days after the
occurrence of any Event of Default actually known to a Responsible Officer of
the Property Trustee, the Property Trustee shall transmit, in the manner and to
the extent provided in Section 10.8, notice of such Event of Default to the
Holders of Preferred Securities, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived, provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee shall be fully
protected in withholding such notice if and so long as the Board of Directors,
the executive committee, or a trust committee of directors and/or responsible
officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the
Depositor's exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Securityholders, unless such exercise shall have been revoked.
(c) The Holders of a majority in Liquidation Amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Debenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Trust 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, including the consent
or vote of all such holders, (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Trust Agreement may only be
waived by the vote of the Holders of the same proportion in
-41-
47
Liquidation Amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Trust Agreement,
but no such waiver shall extend to any subsequent or other default or an Event
of Default with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of
an Event of Default with respect to the 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 Trust Agreement without any further act, vote, or consent of the Holders
of the Common Securities.
(d) The Holders of a majority in Liquidation Amount of the
Common Securities may, by vote, 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 Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 8.2(d),
the Event of Default under this Trust 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 Trust Agreement as provided
below in this Section 8.2(d), the Event of Default under this Trust
Agreement may only be waived by the vote of the Holders of the same
proportion in Liquidation Amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of
the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the 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 Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. The provisions of Section 6.1(b)
and this Section 8.2(d) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Trust Agreement and the Preferred
Securities, as permitted by the Trust Indenture Act.
-42-
48
Subject to the foregoing provisions of this Section 8.2(d), upon such waiver,
any such 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 Trust 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.
(e) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Trust
Agreement. The foregoing provisions of this Section 8.2(e) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Trust
Agreement and the Preferred Securities, as permitted by the Trust Indenture
Act.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a Holder
or transferee such as of a certificate presented for transfer, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) if no Event of Default has occurred and is continuing and,
(i) in performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of
this Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Trust Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
-43-
49
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate and an Opinion of Counsel which, upon receipt of such
request, shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to accomplish 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 reregistration thereof;
(f) the Property Trustee may consult with counsel of its
choice at the Depositor's expense (which counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees) and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and in accordance
with such advice; and the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust Agreement from
any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at
the request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Property Trustee's agents, custodians or nominees) and liabilities which might
be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolutions, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, but the Property Trustee may make such further inquiry or
investigation into such facts or custodian or nominee matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents, custodians or nominees, attorneys or an Affiliate, provided
that the Property Trustee shall not be responsible for the negligence or
recklessness on the part of any agent, attorney, custodian or nominee appointed
by it with due care hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders of the Trust
Securities, which instructions may only be given by the Holders of the same
proportion in
-44-
50
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and (iii)
shall be fully protected in conclusively relying on or acting in accordance
with such instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement;
(l) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(m) in the event that the Property Trustee is also acting as a
Paying Agent, Conversion Agent, and/or Securities Registrar hereunder, the
rights and protections afforded to the Property Trustee pursuant to this
Article 8 shall also be afforded to such Paying Agent, Conversion Agent, and/or
Securities Registrar;
(n) the permissive rights of the Property Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the Property
Trustee shall not be answerable for other than its grossly negligent action,
grossly negligent omission or its willful misconduct; and
(o) the Property Trustee shall not be charged with knowledge
of any Event of Default hereunder (other than an Event of Default under Section
5.1(a) or 5.1(b) of the Indenture if the Property Trustee is also the Paying
Agent with respect to the Securities) or the existence of any Subsidiary of the
Company unless the Property Trustee shall have received notice thereof in
accordance with Section 10.8 hereof from the Company or a Holder.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall not be taken as the statements of the Trustees, and the
Trustees do not assume any responsibility for their correctness. The Trustees
shall not be accountable for the use or application by the Depositor of the
proceeds of the Debentures.
SECTION 8.5. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article 1, any Trustee or any other
agent of any Trustee or the Trust, in its
-45-
51
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Section 8.8 and 8.12, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates (referred to herein as an "Indemnified Person") from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation, dissolution or termination of the Trust or in connection with the
administration of the Trust or 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 authority
conferred on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence or
willful misconduct with respect to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
SECTION 8.7. Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to
-46-
52
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
SECTION 8.9. Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b) and 8.9(c), Trustees (the "Relevant Trustee")
may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
(ii) after the issuance of any Trust Securities, by vote of the
Holders of a majority in Liquidation Amount of the Common Securities
voting as a class.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (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 Depositor and the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 8.9(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.7 (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 Depositor and the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until his,
her or its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or
-47-
53
liquidation. 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 Depositor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to the
Trust, the Depositor and the resigning Property Trustee; or
(b) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Depositor and the resigning Delaware Trustee; and
(iii) no appointment of a successor Property Trustee or Delaware
Trustee shall be effective until all fees, charges, and expenses of the
retiring Property Trustee or retiring Delaware Trustee, as the case may
be, have been paid.
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 8.9 within 60 days after delivery pursuant to this Section 8.9 of an
instrument of resignation or removal, the Property Trustee or Delaware Trustee
resigning or being removed, 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 and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(g) 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.
-48-
54
(h) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.8 and shall give
notice to the Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
(i) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or the
Delaware Trustee, as the case may be, set forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6
shall survive any Trustee's resignation or removal or termination of this Trust
Agreement.
SECTION 8.10. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Relevant Trustee all the rights, powers, trusts and duties of the retiring
Relevant Trustee and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Trust or any successor Relevant Trustee, such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, an
Administrative Trustee on behalf of the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in
the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
-49-
55
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee 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.
SECTION 8.12. Preferential Collection of Claims Against Depositor
or Trust. If and when the Property Trustee shall be or become a creditor of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), the Property Trustee shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Depositor or Trust (or any
such other obligor).
SECTION 8.13. Reports by Property Trustee. (a) To the extent
required by the Trust Indenture Act, within 60 days after December 31 of each
year commencing with December 31, 1998 the Property Trustee shall transmit to
all Securityholders in accordance with Section 10.8 and to the Depositor, a
brief report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the twelve-
month period (or, in the case of the initial report, the period since
the Closing Date) ending with such December 31 or, if the Property
Trustee has not complied in any material respects with such obligations,
a description of such noncompliance;
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder which
it has not previously reported and which in its opinion materially
affects the Trust Securities; and
(iv) such other information as is required by Section 313(a) of
the Trust Indenture Act.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
-50-
56
(c) A copy of such report shall, at the time of such
transmissions to Holders, be filed by the Property Trustee with each national
securities exchange or self-regulatory organization upon which the Trust
Securities are listed, with the Commission and with the Depositor.
SECTION 8.14. Reports to the Property Trustee. The Depositor and
the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as are required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the
manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 8.15. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.16. Number of Trustees. (a) The number of Trustees
shall be five, provided that the Holder of all of the Common Securities by
written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same
Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.16(a),
or if the number of Trustees is increased pursuant to Section 8.16(a), a
vacancy shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.9, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.17. Delegation of Power. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a), including any
registration statement or amendment thereof filed with the Commission, or
making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor 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
-51-
57
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.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve on _______________ (the
"Expiration Date").
SECTION 9.2. Early Dissolution. The first to occur of any of
the following events is an "Early Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a
Tax Event following which the Depositor has elected (i) to pay any Additional
Sums (in accordance with Section 4.4) such that the net amount received by
Holders of Preferred Securities in respect of Distributions are not reduced as
a result of such Tax Event and the Depositor has not revoked any such election
or failed to make such payments or (ii) to redeem all or some of the Trust
Securities pursuant to Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust
Securities;
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) of its intention to dissolve the Trust and
distribute the Debentures in exchange for the Preferred Securities.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of all expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4. Liquidation. (a) If an Early Dissolution Event
specified in clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after
-52-
58
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Trust Securities held by such Holder,
subject to Section 9.4(d). Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address as it appears in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such
Holder; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures,
or, if Section 9.4(d) applies, receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date and, unless the Property Trustee determines otherwise, shall be the date
which is the fifteenth day (whether or not a Business Day) next preceding the
Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record holder of
such Trust Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any Trust Securities Certificates not held by the Clearing Agency
will be deemed to represent an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Preferred Securities held by such
Holders, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on such Trust Securities until such
certificates are presented to the Property Trustee for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
wound-up or terminated, by the Property Trustee in such manner as the Property
Trustee determines, and an
-53-
59
Administrative Trustee shall prepare, execute and file the certificate of
cancellation with the Secretary of State of the State of Delaware. In such
event, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding-up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, with the consent
of the Administrative Trustees and without the consent of the Property Trustee,
the Delaware Trustee or the Holders of the Preferred Securities, the Trust may
merge with or into, convert into, consolidate, amalgamate, be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to Distributions and payments upon liquidation,
redemption and otherwise, (ii) the Depositor expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee as the holder of the Debentures, (iii) the Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which
the Preferred Securities are then listed, if any, (iv) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the Holder's interest in the new entity), (vi) such
successor entity has a purpose substantially identical to that of the Trust,
(vii) prior to such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any
-54-
60
material respect (other than with respect to any dilution of the Holder's
interest in the new entity), (b) following such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act, and (c) following such merger,
consolidation, amalgamation or replacement, the Trust or such successor entity
will be treated as a grantor trust for United States Federal income tax
purposes and (viii) the Depositor or any permitted successor or assignee owns,
directly or indirectly, all of the common securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of 100%
in aggregate Liquidation Amount of the Preferred Securities, consolidate,
convert into, amalgamate, merge with or into, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, convert into,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the successor entity to be classified as other than a grantor
trust for United States Federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. Other
than as set forth in Section 9.1, the death, incapacity, dissolution,
bankruptcy or termination of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to dissolve the Trust or
terminate this Trust Agreement, nor entitle the legal representatives or heirs
of such Person or any Securityholder for such Person to claim an accounting,
take any action or bring any proceeding in any court for a partition or
winding-up of the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment. (a) This Trust Agreement may be amended
from time to time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are Outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under the 1940 Act, or be classified as other than a grantor trust for
United States Federal income tax purposes, or (iii) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of this Trust Agreement under the Trust Indenture Act; provided, however, that
in the case of clause (i), such action shall not adversely affect in any
material respect the interests of any Securityholder, and any such amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
-55-
61
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Holders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding,
acting as a single class, and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trustee's
status as a grantor trust for United States Federal income tax purposes or the
Trust's exemption from the status of an "investment company" under the 1940
Act, provided, however, if any amendment or proposal that would adversely
affect the powers, preferences or special rights of the Trust Securities,
whether by way of amendment or otherwise, would adversely affect only the
Preferred Securities or only the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a majority in
Liquidation Amount of such class of Trust Securities.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date; and
notwithstanding any other provision herein, without the unanimous consent of
the Securityholders (such consent being obtained in accordance with Section 6.3
or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from the status of an "investment company" under the 1940 Act or be
classified as other than a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee and the Debenture Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
-56-
62
SECTION 10.3. Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO ITS CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561
OF TITLE 12 OF THE DELAWARE CODE.
SECTION 10.5. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day which is not a
Business Day, then such payment need not be made on such date but may be made
on the next succeeding day which is a Business Day except as otherwise provided
in Section 4.1(a) and Section 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no interest shall accrue thereon
for the period after such date.
SECTION 10.6. Successors. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the
Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a transaction that is permitted under Article 8 of
the Indenture and pursuant to which the assignee agrees in writing to perform
the Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands. Any report, notice,
demand or other communications which by any provision of this Trust Agreement
is required or permitted to be given or served to or upon any Securityholder or
the Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common
Securities, to Newfield Exploration Company, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee, to the Corporate Trust Office, (b) with respect to the Delaware
Trustee, to One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇
-▇▇-
▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration,
with a copy of any such notice to the Property Trustee at its address above,
and (c) with respect to the Administrative Trustees, to them at the address for
notices to the Depositor, marked "Attention: ___________". Such notice, demand
or other communication to or upon the Trust or the Property Trustee shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been dissolved in accordance
with Article 9, it shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
dissolution of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
the trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
-58-
64
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS THE AGREEMENT OF THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
SECTION 10.12. Counterparts. This Trust Agreement may
contain more than one counterpart of the signature page and this Trust
Agreement may be executed by the affixing of the signature of each of the
Trustees 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.
-59-
65
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY,
as Depositor
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST UNION NATIONAL BANK,
as Property Trustee
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Administrative Trustee
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Administrative Trustee
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, ▇▇,
as Administrative Trustee
-60-
66
EXHIBIT A -- Certificate of Trust of
Newfield Financial Trust __
[To come]
-61-
67
EXHIBIT B -- Form of Common Securities
of Newfield Financial Trust ___
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO AN ENTITY WHOLLY OWNED BY
NEWFIELD EXPLORATION COMPANY OR TO CERTAIN SUCCESSORS OF
NEWFIELD EXPLORATION COMPANY
Certificate Number ______ Number of Common Securities _______
Certificate Evidencing Common Securities
of
Newfield Financial Trust __
Common Securities
(Liquidation Amount $50 per Common Security)
Newfield Financial Trust __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Newfield Exploration Company (the "Holder") is the registered owner of
______________ common securities of the Trust representing undivided beneficial
interests in the assets of the Trust (the "Common Securities"). Except as set
forth in Section 5.10 of the Trust Agreement (as defined below), the Common
Securities are not transferable and any attempted transfer hereof shall be
void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of _______ ___, ____, as the
same may be amended from time to time (the "Trust Agreement") including the
designation of the terms of the Common Securities as set forth therein. The
Holder is entitled to the benefits of the Common Securities Guarantee Agreement
entered into by Newfield Exploration Company, a Delaware corporation, and First
Union National Bank, as Guarantee Trustee, dated as of _______ ___, ____, as
the same may be amended from time to time (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
-62-
68
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of _______ ____.
NEWFIELD FINANCIAL TRUST
By:
-------------------------------------
Name:
------------------------------------
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-
mentioned Trust Agreement.
Dated:
------------------------
First Union National Bank,
as Property Trustee
By:
-------------------------------------
Name:
------------------------------------
Authorized Signatory
-63-
69
EXHIBIT C -- Form of Preferred Securities of
Newfield Financial Trust __
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT
- This Preferred Security is a Book-Entry Preferred Securities Certificate
within the meaning of the Trust Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company ("DTC") or a nominee of
DTC. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than DTC or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of
DTC) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
-64-
70
Certificate Number ______ Number of Preferred Securities ________
CUSIP NO. ____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
NEWFIELD FINANCIAL TRUST __
____% Convertible Preferred Securities
(Liquidation Amount $50 per Preferred Security)
Newfield Financial Trust __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
__________________ (the "Holder") is the registered owner of _______ preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the Newfield Financial Trust __ ____%
Convertible Preferred Securities (Liquidation Amount $50 per Preferred
Security) (the "Preferred Securities"). Except to the extent set forth in the
Trust Agreement (as defined below), the Preferred Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of _______ __, ____, as the
same may be amended from time to time (the "Trust Agreement") including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
Newfield Exploration Company, a Delaware corporation, and First Union National
Bank, as Guarantee Trustee, dated as of _______ __, ____, as the same may be
amended from time to time (the "Guarantee"), to the extent provided therein.
The Trust will furnish a copy of the Trust Agreement and the Guarantee to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
-65-
71
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of _______ ____.
NEWFIELD FINANCIAL TRUST
By:
-------------------------------------
Name:
------------------------------------
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
--------------------
First Union National Bank,
as Property Trustee
By:
-------------------------------------
Name:
------------------------------------
Authorized Signatory
-66-
72
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------------------
Signature:
--------------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
-67-
73
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial Liquidation Amount of this Global Certificate shall
be $__________. The following increases or decreases in the Liquidation Amount
of this Global Certificate have been made:
Amount of increase
in Liquidation Liquidation Amount
Amount of this Amount of decrease of this Global Signature of
Global Certificate in Liquidation Certificate authorized officer
Date Made including upon Amount of this following such of Trustee or
exercise of over- Global Certificate decrease or Securities
allotment option increase Custodian
-68-
74
EXHIBIT D -- Notice of Conversion
NOTICE OF CONVERSION
To: First Union National Bank
as Property Trustee of
Newfield Financial Trust __
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Common Stock of Newfield Exploration Company
(the "Newfield Common Stock") in accordance with the terms of the Amended and
Restated Trust Agreement (as amended from time to time, the "Trust Agreement"),
dated as of _______ __, ____, by ________________, __________________ and
___________ ___________, as Administrative Trustees, ____________________, as
Delaware Trustee, ____________________, as Property Trustee, Newfield
Exploration Company, as Depositor, and by the Holders, from time to time, of
undivided beneficial interests in the assets of the Trust to be issued pursuant
to the Trust Agreement. Pursuant to the aforementioned exercise of the option
to convert these Preferred Securities, the undersigned hereby directs the
Conversion Agent (as that term is defined in the Trust Agreement) to (i)
exchange such Preferred Securities for a portion of the Debentures (as that
term is defined in the Trust Agreement) held by the Trust (at the rate of
exchange specified in the terms of the Preferred Securities set forth in the
Trust Agreement) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Newfield Common Stock (at the conversion rate specified in
the terms of the Preferred Securities set forth in the Trust Agreement).
The undersigned does also hereby direct the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
-69-
75
Date:
--------------------------
in whole in part
----- -----
Number of Preferred Securities to be
converted:
---------------------------------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the shares
of Newfield Common Stock are to be issued,
along with the address or addresses of such
person or persons
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
---------------------------------------------
---------------------------------------------
---------------------------------------------
Signature Guarantee:*
---------------------------------------------
--------------------
* (Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee programs acceptable to
the Trustee.
-70-