EXHIBIT 4.4
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
MERRY LAND PROPERTIES, INC.
AS DEPOSITOR,
FIRST UNION NATIONAL BANK
AS PROPERTY TRUSTEE,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF ___________, 1999
MERRY LAND CAPITAL TRUST
B:\Trust Agreement #3.wpd ▇▇▇
▇▇▇▇▇ LAND CAPITAL 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)
(b)........................................................8.13(b)
(c)........................................................10.8
(d)........................................................8.13(c)
Section 314 (a) ................................................8.14
(b)........................................................Not Applicable
(c)(1). ...................................................Not Applicable
(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) ................................................6.1(b)
(a)(1)(A). ................................................6.1(b)
(a)(1)(B)..................................................6.1(b)
(a)(2). .................................................. Not Applicable
(b)........................................................6.8
(c)........................................................6.7
Section 317 (a)(1). ...........................................2.7
(b)........................................................5.9
Section 318 (a). .............................................. 10.10
* This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS................................................. 1
SECTION 1.1. DEFINITIONS..................................... 1
ARTICLE 2 ESTABLISHMENT OF THE TRUST.................................... 9
SECTION 2.1. NAME............................................. 9
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS.......................................................9
SECTION 2.3. ORGANIZATIONAL EXPENSES......................... 10
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES............ 10
SECTION 2.5. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF
THE COMMON SECURITIES. .......................................10
SECTION 2.6. DECLARATION OF TRUST............................ 10
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
..............................................................11
SECTION 2.8. ASSETS OF TRUST................................ 14
SECTION 2.9. TITLE TO TRUST PROPERTY........................ 14
ARTICLE 3 PAYMENT ACCOUNT.............................................. 14
SECTION 3.1. PAYMENT ACCOUNT................................. 14
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION.............. 15
SECTION 4.1. DISTRIBUTIONS.................................. 15
SECTION 4.2. REDEMPTION...................................... 16
SECTION 4.3. CONVERSION...................................... 18
SECTION 4.4. SPECIAL EVENT EXCHANGE OR REDEMPTION................ 20
SECTION 4.5. SUBORDINATION OF COMMON SECURITIES.............. 21
SECTION 4.6. PAYMENT PROCEDURES.............................. 22
SECTION 4.7. TAX RETURNS AND REPORTS......................... 22
SECTION 4.8. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST..... 22
SECTION 4.9. PAYMENTS UNDER INDENTURE........................ 22
ARTICLE 5 TRUST SECURITIES CERTIFICATES................................ 22
SECTION 5.1. INITIAL OWNERSHIP............................... 22
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES............... 22
SECTION 5.3. DELIVERY OF TRUST SECURITIES CERTIFICATES....... 23
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES....................................................23
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.......................................24
SECTION 5.6. PERSONS DEEMED SECURITY HOLDERS................. 24
SECTION 5.7. ACCESS TO LIST OF SECURITY HOLDERS' NAMES AND
ADDRESSES.....................................................24
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY................. 25
SECTION 5.9. APPOINTMENT OF PAYING AGENT..................... 25
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.... 25
SECTION 5.11. COMMON SECURITIES CERTIFICATE.................. 26
SECTION 5.12. RIGHTS OF SECURITY HOLDERS..................... 26
ARTICLE 6 ACT OF SECURITY HOLDERS; MEETINGS; VOTING.................... 26
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.................... 26
SECTION 6.2. NOTICE OF MEETINGS.............................. 28
SECTION 6.3. MEETINGS OF PREFERRED SECURITY HOLDERS.......... 28
SECTION 6.4. VOTING RIGHTS................................... 28
SECTION 6.5. PROXIES, ETC.................................... 29
SECTION 6.6. SECURITY HOLDER ACTION BY WRITTEN CONSENT....... 29
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES....... 29
SECTION 6.8. ACTS OF SECURITY HOLDERS........................ 29
SECTION 6.9. INSPECTION OF RECORDS........................... 30
ARTICLE 7 REPRESENTATIONS AND WARRANTIES............................... 30
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE..............................30
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR......31
ARTICLE 8 THE TRUSTEES................................................. 31
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES............. 31
SECTION 8.2. NOTICE OF DEFAULTS.............................. 33
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.............. 35
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES....................................................37
SECTION 8.5. MAY HOLD SECURITIES............................. 37
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.................. 37
SECTION 8.7. PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
..............................................................38
SECTION 8.8. CONFLICTING INTERESTS........................... 38
SECTION 8.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
..............................................................39
SECTION 8.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........40
SECTION 8.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS......................................................41
SECTION 8.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR TRUST. ....................................................41
SECTION 8.13. REPORTS BY PROPERTY TRUSTEE.....................41
SECTION 8.14. REPORTS TO THE PROPERTY TRUSTEE................ 42
SECTION 8.15. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
..............................................................42
SECTION 8.16. NUMBER OF TRUSTEES............................. 42
SECTION 8.17. DELEGATION OF POWER............................ 42
ARTICLE 9 DISSOLUTION, LIQUIDATION AND MERGER.......................... 43
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE................ 43
SECTION 9.2. EARLY DISSOLUTION................................43
SECTION 9.3. DISSOLUTION..................................... 43
SECTION 9.4. LIQUIDATION......................................43
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.....................................45
ARTICLE 10 MISCELLANEOUS PROVISIONS.................................... 45
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITY HOLDERS........45
SECTION 10.2. AMENDMENT.......................................46
SECTION 10.3. SEPARABILITY....................................47
SECTION 10.4. GOVERNING LAW...................................47
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY................47
SECTION 10.6. SUCCESSORS......................................47
SECTION 10.7. HEADINGS........................................47
SECTION 10.8. REPORTS, NOTICES AND DEMANDS....................47
SECTION 10.9. AGREEMENT NOT TO PETITION.......................48
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE
ACT...........................................................48
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE. ...............................................49
SECTION 10.12. COUNTERPARTS.................................. 49
EXHIBIT A -- Certificate of Trust of Merry Land Capital Trust...........51
EXHIBIT B -- Form of Common Securities of Merry Land Capital Trust......52
EXHIBIT C -- Form of Preferred Securities of Merry Land Capital Trust...54
EXHIBIT D -- Form of Notice of Conversion.............................. 54
B:\Trust Agreement #3.wpd REH
THIS AMENDED AND RESTATED TRUST AGREEMENT is dated as of ________,
1999 among: (i) Merry Land Properties, Inc., a Georgia 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) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as
Delaware trustee (in such capacity, the "Delaware Trustee"); (iv) ▇.
▇▇▇▇▇▇▇ Houston, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, each of whose
address is c/o Merry Land Properties, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (each, an "Administrative Trustee" and, collectively, the
"Administrative Trustees" and, collectively with the Property Trustee and
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 the Delaware Trustee have duly declared and
created a business trust pursuant to the Delaware Business Trust Act by the
entering into a certain trust agreement dated as of September 20, 1999 (the
"Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on September 20, 1999, 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 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 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:
(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 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 ▇. ▇▇▇▇▇▇▇ Houston, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, 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.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person 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.
"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.
"CLOSING DATE" means 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 B.
"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 $10 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 the Common Shares, without par value, 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 office of the Property Trustee at
which at any particular time its duties and responsibilities hereunder
are to be administered, which office at the date hereof is located at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"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 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 a "Debenture 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, $___________ principal amount, issued
pursuant to the Indenture.
"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.
"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.
"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.
"HOLDER" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a
beneficial owner within the meaning of the Delaware Business Trust
Act.
"INDENTURE" means the Junior Convertible Subordinated Indenture, dated
as of ___________ ___, 1999 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 $10 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).
"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 D.
"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 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;
(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 Trust
Securities, $10 per Trust Security, plus accumulated and unpaid
Distributions (including any Additional Sums), if any, to the date
fixed for redemption. 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 $10 per Trust Security and all
accumulated and unpaid Distributions (including any Additional Sums),
if any, to the date fixed for redemption. In the event of a
Provisional Redemption, Trust Securities shall be redeemed at the
redemption price of $10 per Trust Security, plus accumulated and
unpaid Distributions (including any Additional Sums), if any, to the
date fixed for redemption.
"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 canceled 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
(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.
"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 Security Holders in which all
amounts paid in respect of the Debentures will be held and from which
the Property Trustee shall make payments to the Security Holders 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 C, issued in certificated, fully registered form as
provided in Section 5.2.
"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 $10 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and
a Liquidation Distribution as provided herein.
"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.
"PROVISIONAL REDEMPTION" has the meaning specified in the Indenture.
"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, $10 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 or the Delaware 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.
"SECURITY HOLDER" or "HOLDER" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the
meaning of the Delaware Business Trust Act.
"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 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 within 90 days after the date thereof will not be,
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 MINIMIS 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 Security
Holders.
"TRUST SECURITY" means any one of the Common Securities or the
Preferred Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"TRUSTEES" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
ARTICLE 2 ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME. The Trust continued hereby shall be known as "Merry
Land Capital Trust," 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
c/o The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to 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. 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 Preferred Securities Certificates to Persons who have
validly subscribed for the Preferred Securities in accordance with rights
distributed to holders of the Common Stock, in an aggregate amount of
______ Preferred Securities having an aggregate Liquidation Amount of
$____,000, against receipt of the aggregate purchase price of such
Preferred Securities of $____,000, 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, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase Debentures from the Depositor, 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 __,000 Common Securities having an
aggregate Liquidation Amount of $_,_00,000 against receipt of the aggregate
purchase price of such Common Securities from the Depositor of Debentures,
registered in the name of the Property Trustee (in its capacity as such)
and having an aggregate principal amount equal to $_,_00,000.
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 upon and subject to
the conditions set forth herein for the benefit of the Trust and the
Security Holders. 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 other 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; 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, 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 such 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 the Delaware Business Trust
Act or the Trust Indenture Act, 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 Security Holders except as
otherwise provided in Section 10.2(a).
(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 Security Holders 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 Security Holders 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 Security
Holders (without consideration of the effect of any such
action on any particular Security Holder);
(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.
(iii) As among the Trustees, the Delaware Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) file a Certificate of Trust in the form attached as
Exhibit A with the Delaware Secretary of State;
(B) file an amendment to the Certificate of Trust of the
Trust if so requested by the Administrative Trustees; and
(C) forward notices received in his capacity as Delaware
Trustee to the Administrative Trustees.
(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, cause the Trust to (i) invest any proceeds
received by the Trust from holding the Debentures (rather, the
Trustees shall distribute all such proceeds to the Security Holders
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 Security Holders,
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 Security Holders in their capacity as Security
Holders.
(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 a registration statement 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 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) any other actions necessary or incidental to carry out any
of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will
not be deemed to be an "investment company" required to be registered
under the 1940 Act, or taxed as a corporation or a partnership 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 Security Holders in accordance
with this Trust Agreement. The Security Holders shall not have legal title
to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
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 Security Holders 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 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, 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 September 30, December 31, March 31, and June 30 of each
year, commencing on December 31, 1999 (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; provided, however if the Depositor defers the
payment of interest on the Debentures, the interest rate on the
Debentures will increase to a rate that will yield an annualized
return of ___% compounded quarterly, and the rate of accrual of
distributions on the Trust Securities will be adjusted to the same
extent. No interest will accrue on unpaid interest. Whenever there
is unpaid deferred interest outstanding, the interest rate on the
Debentures (and the rate of accrual of dividends on the Trust
Securities) will be adjusted quarterly to the rate corresponding to
the number of quarters for which interest has been deferred, as
follows:
Quarters of Quarters of
DEFERRED INTEREST ADJUSTED RATE DEFERRED INTEREST ADJUSTED RATE
0 9.0000000% 11 11.4957945
1 9.2025000 12 11.7544499
2 9.4095563 13 12.0189250
3 9.6212713 14 12.2893508
4 9.8377499 15 12.5658612
5 10.0590992 16 12.8485931
6 10.2854290 17 13.1376865
7 10.5168511 18 13.4332844
8 10.7534803 19 13.7355333
9 10.9954336 20 14.0445828
10 11.2428308
The interest rate on the Debentures (and the rate of accrual of
dividends on the Trust Securities) will be effective beginning the
calendar day subsequent to the due date of the interest payment.
Upon payment of all deferred interest on the Debentures, the interest
rate thereon (and the rate of accrual of dividends on the Trust
Securities) will return to _____% per annum, effective on the date
all deferred interest is paid. 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.
(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
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 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 Trust Securities, then, by 12:00 noon, Eastern Standard Time,
on the Redemption Date, subject to Section 4.2(c), the Property
Trustee 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 the Trust Securities 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 Trust
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 Security Holders holding Trust Securities so called for
redemption will cease, except (i) the right of such Security Holders
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 $10 or an integral
multiple of $10 in excess thereof) 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. 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 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
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 exchange 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 $10 principal
amount of Debentures), subject to all of the adjustments with respect
to the conversion price of the Debentures, as 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 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 (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 date of conversion. 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 the Property Trustee, 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
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 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 within 90 days
following the occurrence of such Tax Event. 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 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 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, 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.
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, 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 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 which is the fifteenth
day (whether or not a Business Day) preceding the exchange date.
SECTION 4.5. SUBORDINATION OF COMMON SECURITIES. Payment of
Distributions 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 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 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 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.
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 Security Holder a Form 1099 or the
appropriate Internal Revenue Service form required to be furnished to such
Security Holder 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 Security Holders 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 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 $10
Liquidation Amount and integral multiples of $10 in excess thereof, and
the Common Securities Certificates shall be issued in denominations of $10
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. The Trust Securities will be represented
by one or more certificates in registered, certificated form. The Common
Securities Certificate shall be in the form attached hereto as Exhibit B,
and the Preferred Securities Certificates shall be in the form attached
hereto as Exhibit C. 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 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 Security Holder, and shall be entitled to the
rights and subject to the obligations of a Security Holder 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 to the respective purchasers
thereof 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. The Securities Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 5.8, a 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 Trust
Securities Certificates as herein provided. The Property Trustee shall be
the initial Securities Registrar.
Subject to any 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 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.
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 SECURITY HOLDERS. 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 SECURITY HOLDERS' 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 Security Holders 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 Security Holders to communicate with other
Security Holders 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, by receiving and holding a Trust Securities Certificate, shall be
deemed to have agreed not to 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 Charlotte, North Carolina 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 ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its principal corporate trust office
for such purposes. The Securities Registrar shall give prompt written
notice to the Depositor and to the Security Holders of any change in the
location of the Securities Register or any such office or agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT. The Trust shall maintain in
Charlotte, North Carolina, an office or agency (the "Paying Agent") where
the Preferred Securities may be presented for payment. The Paying Agent
shall make Distributions to Security Holders 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 Security Holders in trust for the benefit of the
Security Holders entitled thereto until such sums shall be paid to each
Security Holder. 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.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the
Closing Date provided for in Section 2.5, 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 MERRY LAND
PROPERTIES, INC. OR TO CERTAIN SUCCESSORS OF MERRY LAND PROPERTIES, INC."
SECTION 5.11. COMMON SECURITIES CERTIFICATE. 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. The Common Securities Certificate shall be in the form
attached hereto as Exhibit B.
SECTION 5.12. RIGHTS OF SECURITY HOLDERS. 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 Security Holders
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 Security Holders 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 SECURITY HOLDERS; 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 Security Holders
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 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, 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).
Furthermore, the Holders of a majority in aggregate Liquidation
Amount of the Preferred Securities shall have the exclusive
right to appoint, remove or replace the Property Trustee and the
Delaware Trustee, subject to Article 8 of this Trust Agreement.
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 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 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 Security Holder 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 SECURITY HOLDERS. No annual
meeting of Security Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of Security Holders to vote on any
matter upon the written request of the Preferred Security Holders 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 Security Holders. 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 Security Holders,
unless this Trust Agreement requires a greater number of affirmative
votes.
SECTION 6.4. VOTING RIGHTS. Security Holders shall be entitled to one
vote for each $10 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Security Holders 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 Security Holders, any
Security Holders 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 Security Holders 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 Security Holder 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. SECURITY HOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Security Holders at a meeting may be taken without a
meeting if Security Holders 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 Security Holders 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 Security Holders
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 Security Holders
of record for such purposes.
SECTION 6.8. ACTS OF SECURITY HOLDERS. 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
Security Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Security Holders
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 Security Holders 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 Security Holder of any Trust Security shall
bind every future Security Holder of the same Trust Security and the
Security Holder 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 Security Holder
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 Security Holders and the Administrative Trustees or among such
Security Holders or Trustees with respect to the authenticity, validity or
binding nature of any request, demand, authorization, direction, consent,
waiver or other Act of such Security Holder 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 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 extent permitted by applicable 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 rights of 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 Security Holders during normal business
hours for any purpose reasonably related to such Security Holder's
interest as a Security Holder.
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 or himself, hereby represents
and warrants for the benefit of the Depositor and the Security Holders
that (each such representation and warranty made by the Property Trustee
and the Delaware Trustee being made only with respect to itself or
himself):
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of
the United States;
(b) the Property Trustee has full corporate and trust power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by 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 or
him in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and
(d) the execution, delivery and performance by the Property Trustee
of this Trust Agreement have been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and do
not require any approval of stockholders of the Property Trustee. The
execution, delivery and performance of this Trust Agreement by the
Property Trustee and the Delaware Trustee will not (i) violate the
Property 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 Security
Holders 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 Security Holders 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. 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 incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of
any of their rights or powers, if they shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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 Administrative Trustees or Delaware Trustee
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, an Administrative Trustee or
Delaware Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Security Holders,
such Administrative Trustee or Delaware Trustee shall not be liable
to the Trust or to any Security Holder for such Administrative
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 Administrative
Trustees or Delaware Trustee otherwise existing at law or in equity,
are agreed by the Depositor and the Security Holders to replace such
other duties and liabilities of the Administrative Trustees or
Delaware Trustee.
(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 Security Holder, by its
acceptance of a Trust Security, agrees that it will 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;
(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 sixty (60) 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 Security Holders, 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 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 Trust Agreement 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. 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 Security Holders, 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;
(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 or 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 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 Security Holders pursuant to this
Trust Agreement, unless such Security Holders 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 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; and
(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.
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 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 the negligence or
willful misconduct of such Indemnified Person with respect to such
acts or omissions;
(d) the indemnity provided to a Trustee under this Section 8.6 shall
survive any Trustee's resignation or removal or termination of this
Trust Agreement;
(e) 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; and
(f) the provisions of this Section 8.6 shall survive termination of
this Trust Agreement or the resignation of removal of any Trustee.
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 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 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 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, or the application of this
provision shall have been waived in writing by the retiring
Property Trustee or the retiring Delaware Trustee, as the case
may be.
(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.
(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 Security Holders 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).
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, 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.
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 that
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, 1999, the
Property Trustee shall transmit to all Security Holders 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 on such date 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 Security
Holders 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.
(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. Provided that the
Property Trustee meets the applicable requirements, 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
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 December 31, 2029
(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 Debentures 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. DISSOLUTION. 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 Security Holders 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; (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 Security Holders and (d) the filing of a certificate of
cancellation by the Trustees in accordance with Section 3810 of the
Delaware Business Trust Act.
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 satisfaction of
liabilities to creditors of the Trust as provided by applicable law,
to each Security Holder 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
Security Holders, 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, and (ii) all Trust Securities Certificates will be
deemed to represent an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Trust 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 Administrative Trustee shall prepare, execute and file the
certificate of cancellation with the Secretary of State of the State
of Delaware. In such event, Security Holders will be entitled to
receive out of the assets of the Trust available for distribution to
Security Holders, 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, 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, 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, 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,
(vi) such successor entity has a purpose substantially identical to that
of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of
the 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), (b) following such merger, consolidation,
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, 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, 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 SECURITY HOLDERS. 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 Security Holder 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 Security
Holders, (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 to ensure that the Trust
will not 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
Security Holder, and any such amendments of this Trust Agreement
shall become effective when notice thereof is given to the Security
Holders.
(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 Security Holder
(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 Security Holder to institute suit for
the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous
consent of the Security Holders (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 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.
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 SECURITY HOLDERS, 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 THEREOF.
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
Security Holder 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 Merry Land
Properties, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. 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 First Union National Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) with respect to the Delaware Trustee, to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, The Corporation Trust Company, Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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: ▇▇. ▇. ▇▇▇▇▇▇▇ Houston." 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 Security Holders 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 Security Holders, 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 SECURITY HOLDER OR BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITY HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND AGREEMENT TO SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITY HOLDER 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 SECURITY HOLDER 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.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
MERRY LAND PROPERTIES, INC.,
as Depositor
By:________________________________
Name: Title:
FIRST UNION NATIONAL BANK, as Property Trustee
By:________________________________
Name: Title:
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
as Delaware Trustee
__________________________________
▇. ▇▇▇▇▇▇▇ HOUSTON,
as Administrative Trustee
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Administrative Trustee
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Administrative Trustee
B:\Trust Agreement #3.wpd REH
EXHIBIT A -- Certificate of Trust of Merry Land Capital Trust
CERTIFICATE OF TRUST
OF
MERRY LAND CAPITAL TRUST
THIS Certificate of Trust of Merry Land Capital Trust (the "Trust"), dated
as of September 20, 1999, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Merry Land
Capital Trust.
2.DELAWARE TRUSTEE. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware is ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust, has
executed this Certificate of Trust as of the date first written above.
_____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his individual
capacity but solely a trustee of the
Trust
B:\Trust Agreement #3.wpd REH
EXHIBIT B -- Form of Common Securities of Merry Land Capital Trust
THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION AND THE DEBENTURES THAT MAY BE ISSUED IN EXCHANGE THEREFOR HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE, IN COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY
MERRY LAND PROPERTIES, INC. OR TO CERTAIN SUCCESSORS OF MERRY LAND
PROPERTIES, INC.
Certificate Number ____Number of Common Securities _____
Certificate Evidencing Common Securities
of
Merry Land Capital Trust
Common Securities (Liquidation Amount $10 per Common Security)
Merry Land Capital Trust, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Merry
Land Properties, Inc. (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 ______________, 1999, 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 Merry Land Properties, Inc., an Georgia
corporation, and First Union National Bank, as Guarantee Trustee, dated as
of ______________, 1999 (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.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ______ day of ________________, 1999.
MERRY LAND CAPITAL TRUST
By:________________________________
Name:
Title: 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:
Title: Authorized Signatory
B:\Trust Agreement #3.wpd REH
EXHIBIT C -- Form of Preferred Securities of Merry Land Capital Trust
B:\Trust Agreement #3.wpd REH
EXHIBIT D -- Notice of Conversion
NOTICE OF CONVERSION
To: First Union National Bank, as Property Trustee of Merry Land Capital
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 Shares of Merry Land Properties, Inc. (the
"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 _____________, 1999, by ▇. ▇▇▇▇▇▇▇ Houston, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Administrative Trustees, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
as Delaware Trustee, First Union National Bank, as Property Trustee, Merry
Land Properties, Inc., 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
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.
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 b