Exhibit 4(h)(iii)
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
SOUTHWESTERN ELECTRIC POWER COMPANY
as Depositor and Trust Securities Guarantor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS OF THE TRUST SECURITIES
Dated as of ______, ____
SWEPCO CAPITAL TRUST II
================================================================================
SWEPCO CAPITAL TRUST II
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) .......................................8.07
(a)(2) .......................................8.07
(a)(3) .......................................8.09
(a)(4) .......................................Not Applicable
(b) .......................................8.08
Section 311(a) .......................................8.13
(b) .......................................8.13
Section 312(a) .......................................5.07
(b) .......................................5.07
(c) .......................................5.07
Section 313(a) .......................................8.14(a)
(b) .......................................8.14(a)
(c) .......................................8.14(a)
(d) .......................................8.14(b)
Section 314(a) .......................................8.15
(b) .......................................Not Applicable
(c)(1) .......................................8.16
(c)(2) .......................................8.16
(c)(3) .......................................Not Applicable
(d) .......................................Not Applicable
(e) .......................................1.01
Section 315(a) .......................................8.01, 8.03
(b) .......................................8.02
(c) .......................................8.01(a)
(d) .......................................8.01, 8.03
(e) .......................................Not Applicable
Section 316(a) .......................................6.01
(a)(1)(A) .......................................6.01
(a)(1)(B) .......................................Not Applicable
(a)(2) .......................................Not Applicable
(b) .......................................Not Applicable
(c) .......................................6.07
Section 317(a)(1) .......................................Not Applicable
(a)(2) .......................................Not Applicable
(b) .......................................5.09
Section 318(a) .......................................10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions..................................................1
ARTICLE II
CONTINUATION OF THE TRUST
Section 2.01. Name.........................................................8
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business.....................................................8
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses......................................9
Section 2.04. Issuance of the Preferred Trust Securities...................9
Section 2.05. Subscription and Purchase of Debentures; Issuance of
the Common Trust Securities .................................9
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees .....................................9
Section 2.07. Authorization to Enter into Certain Transactions.............9
Section 2.08. Assets of Trust.............................................12
Section 2.09. Title to Trust Property.....................................12
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. Payment Account.............................................12
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01. Distributions...............................................12
Section 4.02. Redemption..................................................13
Section 4.03. Subordination of Common Trust Securities....................14
Section 4.04. Payment Procedures..........................................15
Section 4.05. Tax Returns and Reports.....................................15
Section 4.06. Payments under Indenture....................................15
Section 4.07. [Remarketing]...............................................15
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. Initial Ownership...........................................16
Section 5.02. The Trust Securities Certificates...........................16
Section 5.03. Execution and Delivery of Trust Securities Certificates.....16
Section 5.04. Registration of Transfer and Exchange of Trust
Securities Certificates ....................................16
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates ...............................................17
Section 5.06. Persons Deemed Securityholders..............................17
Section 5.07. Access to List of Securityholders' Names and Addresses......17
Section 5.08. Maintenance of Office or Agency.............................17
Section 5.09. Appointment of Paying Agent.................................18
Section 5.10. Ownership of Common Trust Securities by Depositor...........18
Section 5.11. Definitive Preferred Trust Securities Certificates..........18
Section 5.12. Book-Entry System...........................................19
Section 5.13. Rights of Securityholders...................................19
Section 5.14. Cancellation by Transfer Agent and Registrar................19
-i-
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights................................20
Section 6.02. Notice of Meetings..........................................21
Section 6.03. Meetings of Holders of Preferred Trust Securities...........21
Section 6.04. Voting Rights...............................................21
Section 6.05. Proxies, etc................................................21
Section 6.06. Securityholder Action by Written Consent....................21
Section 6.07. Record Date for Voting and Other Purposes...................21
Section 6.08. Acts of Securityholders.....................................22
Section 6.09. Inspection of Records.......................................22
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE
PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 7.01. Property Trustee............................................23
Section 7.02. Delaware Trustee............................................23
ARTICLE VIII
THE TRUSTEES
Section 8.01. Certain Duties and Responsibilities.........................24
Section 8.02. Notice of Defaults..........................................25
Section 8.03. Certain Rights of Property Trustee..........................25
Section 8.04. Not Responsible for Recitals or Issuance of Securities......27
Section 8.05. May Hold Securities.........................................27
Section 8.06. Compensation; Fees; Indemnity...............................27
Section 8.07. Certain Trustees Required; Eligibility......................28
Section 8.08. Conflicting Interests.......................................28
Section 8.09. Co-Trustees and Separate Trustee............................28
Section 8.10. Resignation and Removal; Appointment of Successor...........29
Section 8.11. Acceptance of Appointment by Successor......................30
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business ...................................................31
Section 8.13. Preferential Collection of Claims Against Depositor
or Trust ...................................................31
Section 8.14. Reports by Property Trustee.................................31
Section 8.15. Reports to the Property Trustee.............................31
Section 8.16. Evidence of Compliance With Conditions Precedent............31
Section 8.17. Number of Trustees..........................................31
Section 8.18. Delegation of Power.........................................32
Section 8.19. Fiduciary Duty..............................................32
Section 8.20. Delaware Trustee............................................32
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.01. Dissolution Upon Expiration Date............................33
Section 9.02. Early Dissolution...........................................33
Section 9.03. Termination.................................................33
Section 9.04. Liquidation.................................................33
Section 9.05. Mergers, Consolidations, Amalgamations or Replacements of
the Trust ..................................................35
-ii-
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Payment of Expenses of the Trust............................35
Section 10.02. Limitation of Rights of Securityholders.....................36
Section 10.03. Amendment...................................................36
Section 10.04. Separability................................................37
Section 10.05. Governing Law...............................................37
Section 10.06. Successors..................................................37
Section 10.07. Headings....................................................37
Section 10.08. Notice and Demand...........................................37
Section 10.09. Agreement Not to Petition...................................37
Section 10.10. Conflict with Trust Indenture Act...........................38
Section 10.11. Counterparts................................................38
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ______,
____, among (i) Southwestern Electric Power Company, a Delaware corporation as
depositor (the "Depositor") and as Trust Securities guarantor (the "Trust
Securities Guarantor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of the State of New York, as trustee (the
"Property Trustee" and, in its separate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) The Bank of New York (Delaware), as
Delaware trustee (the "Delaware Trustee"), (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, each an individual, and each of whose address is c/o American Electric
Power Company, Inc., ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (each, an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees are
referred to herein each as a "Trustee" and collectively as the "Trustees"), and
(v) the several Holders, as hereinafter defined.
R E C I T A L S:
The Depositor, the Property Trustee, the Delaware Trustee and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each as Administrative Trustee, have
heretofore duly created and continued a statutory trust under the Delaware
Statutory Trust Act by the entering into that certain Trust Agreement, dated as
of August 15, 2003 (the "Original Trust Agreement"), as amended by the execution
and filing with the Secretary of State of the State of Delaware of the
Certificate of Trust, dated August 15, 2003 (attached hereto as Exhibit A and,
as it may be amended from time to time, the "Certificate of Trust").
The Trust and the Depositor have entered into an Underwriting
Agreement dated __________, ____ with ______________________________.
The parties hereto desire to provide for, among other things,
(i) the issuance of the Common Trust Securities, as hereinafter defined, by the
Trust to the Depositor, (ii) the issuance of the Preferred Trust Securities, as
hereinafter defined, by the Trust, pursuant to the Underwriting Agreement and
(iii) the acquisition by the Trust of all of the right, title and interest in
the Debentures, as hereinafter defined.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for the
benefit of the other party and for the benefit of the Securityholders, hereby
agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.(a) For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless
the context otherwise requires:(b) the terms defined in this
Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(c) 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;
(d) 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
(e) 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 6.08.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount for a given period, the amount of Additional Interest
(as defined in the Subordinated Indenture) paid by the Debenture Issuer on a
Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in their capacities as Administrative Trustees of the Trust and
not in their individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Adverse Tax Consequence" means any of the circumstances
described in clauses (i), (ii) and (iii) of the definition of "Tax Event"
herein.
"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. 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.
"Authorized Officer" means the Chairman of the Board, the
President and Vice President, the Treasurer, any Assistant Treasurer or any
other officer or agent of the Depositor duly authorized by the Board of
Directors to act in respect of matters relating to this Trust Agreement.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court
having jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under Federal
bankruptcy law or any other applicable Federal or state 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
(ii) the institution by such Person of proceedings
to be adjudicated a bankrupt or insolvent, or of 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
Federal bankruptcy law or any other applicable Federal or
state law, or the consent by it to the filing of 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.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified the recitals
hereof.
-2-
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Trust Security" means a security representing an
undivided beneficial interest in the assets of the Trust having a Liquidation
Amount of $25 and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions, Debentures and a Liquidation
Distribution as provided herein.
"Common Trust Securities Certificate" means a certificate
evidencing ownership of Common Trust Securities, substantially in the form
attached as Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in New York, New York which at the date
of execution of this Trust Agreement is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of the Trust or
the Trust's Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Southwestern Electric Power Company,
a Delaware corporation, in its capacity as issuer of the Debentures, and its
successors.
"Debenture Redemption Date" means "Redemption Date" as defined
in the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means ______________________________, a
New York banking corporation, as trustee under the Subordinated Indenture, and
its permitted successors and assigns as such trustee.
"Debentures" means $___________ aggregate principal amount of
the Debenture Issuer's __% Subordinated Debt Securities, Series _, issued
pursuant to the Subordinated Indenture which will mature on ________, _______.
"Definitive Preferred Trust Securities Certificates" means
Preferred Trust Securities Certificates issued in certificated, fully registered
form as provided in Section 5.11.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation 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 trustee appointed
as herein provided.
-3-
"Depositor" has the meaning specified in the preamble to this
Trust Agreement and includes Southwestern Electric Power Company, in its
capacity as Holder of the Common Trust Securities, and its successors.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such 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):
(i) the occurrence of a Debenture Event of
Default; or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid Distributions,
of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Trustees
in this Trust Agreement (other than a covenant or warranty a
default in whose performance or breach is specifically dealt
with in clause (ii) or (iii), above) and continuation of such
default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Trust, the
defaulting trustee and the Depositor by the Holders of at
least 25% in Liquidation Amount of the Outstanding Preferred
Trust Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall have the meaning specified in Section
9.01.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partners, employee,
representative or agent of any Trustee, or any employee or agent of the Trust or
its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
["Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel experienced in such matters 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"),
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 become 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.
-4-
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities plus
accumulated and unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holders to which such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officer's Certificate" means a certificate signed by an
Authorized Officer of the Depositor and delivered to the appropriate Trustee.
Any officer signing an Officer's Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officer's Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that the officer signing the
Officer's 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 such officer in
rendering the Officer's Certificate;
(c) a statement that such 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
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, the Delaware Trustee or the
Depositor, and who shall be reasonably 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 statements
comparable to the statements referred to in the definition of "Officer's
Certificate" herein.
"Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Preferred Trust
Securities, means, as of the date of determination, all Preferred Trust
Securities theretofore delivered under this Trust Agreement, except:
(i) Preferred Trust Securities theretofore
canceled by the Transfer Agent and Registrar or delivered to
the Transfer Agent and Registrar for cancellation;
(ii) Preferred 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 Preferred Trust Securities;
provided that, if such Preferred Trust Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
-5-
(iii) Preferred Trust Securities which have been
paid or in exchange for or in lieu of which other Preferred
Trust Securities have been delivered pursuant to this Trust
Agreement, including pursuant to Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Trust Securities owned by the Depositor, the Trust Securities
Guarantor, any Administrative Trustee or any Affiliate of the Depositor, the
Trust Securities Guarantor or any Administrative Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Trust
Securities which such Trustee knows to be so owned shall be so disregarded and
(b) the foregoing shall not apply at any time when all of the Outstanding
Preferred Trust Securities are owned by the Depositor, the Trust Securities
Guarantor, one or more of the Administrative Trustees and/or any such Affiliate.
Preferred 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
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Trust Securities and that the pledgee is not the Depositor or the
Trust Securities Guarantor, or any Affiliate of the Depositor or the Trust
Securities Guarantor.
"Owner" means each Person who is the beneficial owner of a
Trust Securities Certificate as reflected in the records of the Securities
Depository or, if a Securities Depository participant is not the beneficial
owner, then as reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in accordance with the
rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank, or
such other banking institution as the Depositor shall select for the benefit of
the Securityholders in which all amounts paid in respect of the Debentures will
be held and from which the Paying Agent, pursuant to Section 5.09, shall make
payments to the Securityholders in accordance with Sections 4.01 and 4.02.
"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 Trust Security" means a security representing an
undivided beneficial interest in the assets of the Trust having a Liquidation
Amount of $25 and having rights provided therefor in this Trust Agreement,
including the right to receive Distributions, Debentures and a Liquidation
Distribution as provided herein and, in certain circumstances, a preference over
the Common Trust Securities.
"Preferred Trust Securities Certificate" means a certificate
evidencing ownership of Preferred Trust Securities, substantially in the form
attached as Exhibit C.
"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 trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security.
-6-
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Responsible Officer," when used with respect to the Property
Trustee, means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matters.
"Securities Depository" shall have the meaning specified in
Section 5.12. The Depository Trust Company will be the initial Securities
Depository.
"Securities Register" shall mean the Securities Register as
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be a beneficial owner of such security within the meaning of the
Delaware Statutory Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
____________, ____, among the Debenture Issuer, the Depositor, as guarantor and
the Debenture Trustee, as trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust or the Depositor of
an Opinion of Counsel experienced in such matters to the effect that, as a
result of (a) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or treaties (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial decision or
any official administrative pronouncement, ruling, regulatory procedure, notice
or announcement (including any notice or announcement of intent to issue or
adopt any such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
any such Administrative Action or judicial decision or any interpretation or
pronouncement that provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case by any legislative body, court, governmental authority or
regulatory body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, or which Administrative Action is taken
or which judicial decision is issued, in each case on or after the date of
issuance of the Preferred Trust Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be subject to United States Federal income
tax with respect to interest received on the Debentures, (ii) interest payable
by the Depositor on the Debentures is not, or will not be, fully deductible by
the Depositor for United States Federal income tax purposes, or (iii) the Trust
is, or will be subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Transfer Agent and Registrar" shall mean the transfer agent
and registrar for the Preferred Trust Securities appointed by the Trust and
shall be initially the Property Trustee.
"Trust" means the Delaware statutory trust created by the
Trust Agreement and the Certificate of Trust and continued hereby and identified
on the cover page to 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 (i) all exhibits hereto and
(ii) for all purposes of this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and 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.
-7-
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and rights
in respect of the foregoing for the time being held by the Property Trustee
pursuant to the terms of this Trust Agreement.
"[Trust] Securities Certificate" means any one of the Common
Trust Securities Certificates or the Preferred Trust Securities Certificates.
"Trust Securities Guarantee" means the Trust Securities
Guarantee Agreement executed and delivered by the Depositor, as guarantor and
______________________________, a New York banking corporation, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the [Preferred] Trust Securities, as amended from
time to time.
"Trust Securities Guarantor" means Southwestern Electric Power
Company, a Delaware corporation, and its successors, as guarantor under the
Trust Securities Guarantee.
"Trust Security" means any one of the Common Trust Securities
or the Preferred Trust Securities. The Common Trust Securities and the Preferred
Trust Securities represent the sole beneficial interests in the Trust, and the
Trust shall not issue any interests other than the Trust Securities.
"Trustees" mean, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of ____________, ____, among the Trust, the Depositor and the
underwriters named therein.
[Additional Definitions if Securities are to be issued in
connection with Stock Purchase Units]
ARTICLE II
Continuation of the Trust
Section 2.01. Name.The Trust continued hereby shall be known
as "SWEPCo Capital Trust III", 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 2.02. Office of the Delaware Trustee; Principal Place
of Business.The office of the Delaware Trustee in the State of Delaware is ▇▇▇▇▇
▇▇▇▇ Center, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address in
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders, the Depositor and the Trust Securities Guarantor. The principal
place of business of the Trust is c/o Southwestern Electric Power Company, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
-8-
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses.The Property Trustee acknowledges receipt in trust from
the Depositor in connection with the Trust Agreement of the sum of $10, which
constituted the initial Trust Property. 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 2.04. Issuance of the Preferred Trust Securities.On
____________, ____, an authorized representative of the Depositor and the Trust,
both executed and delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02, executed and
delivered a Preferred Trust Securities Certificate, registered in the name of
the nominee of The Depository Trust Company, having an aggregate Liquidation
Amount of $___________.
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Trust Securities.Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, subscribed to and purchased from the Debenture Issuer Debentures,
registered in the name of the Property Trustee and having an aggregate principal
amount equal to $___________ and, in satisfaction of the purchase price for such
Debentures, (x) one of the Administrative Trustees, on behalf of the Trust,
executed and delivered to the Depositor Common Trust Securities Certificates,
registered in the name of the Depositor, representing _____ Common Trust
Securities having an aggregate Liquidation Amount of $_________, and (y) the
Property Trustee, on behalf of the Trust, delivered to the Debenture Issuer the
sum of $___________ representing the proceeds from the sale of the Preferred
Trust Securities pursuant to the Underwriting Agreement.
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees. The exclusive purposes and functions of the Trust are
(i) to issue Trust Securities and invest the proceeds thereof in Debentures, and
(ii) to engage in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Securityholders. The 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. Anything in this Trust
Agreement to the contrary notwithstanding, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Statutory Trust Act.
Section 2.07. Authorization to Enter into Certain
Transactions.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
paragraph (b) of this Section and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the authority to enter
into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting
singularly or together, shall have the power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities
pursuant to the Underwriting Agreement;
(ii) without the consent of any Person, 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
desirable in connection with the consummation of the
Underwriting Agreement;
-9-
(iii) to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust
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;
(v) the listing, if any, of the Preferred Trust
Securities upon such national securities exchange or exchanges
or automated quotation system or systems as shall be
determined by the Depositor and the registration of the
Preferred Trust Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent
and Transfer Agent and Registrar in accordance with this Trust
Agreement;
(vii) the establishment of a record date for any of
the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax
returns and tax information reports that are required to be
filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as
a statutory statutory trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders of the Preferred Trust Securities or to enable the
Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or
instruments, perform all duties and powers, and do all things
for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(xi) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of
Delaware; and
(xii) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to protect and conserve
the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(B) 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
ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment
Account of interest, principal and any other payments made in
respect of the Debentures;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
-10-
(v) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with the terms of this
Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the execution of the certificate of cancellation
to be prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
(viii) the taking of any ministerial action
incidental to the foregoing as the Property Trustee may from
time to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
(a) Subject to this Section 2.07(a)(B), the Property Trustee
shall have none of the duties, powers or authority of the Administrative
Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth
in Section 2.07(c). The Property Trustee shall have the power and authority to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Subordinated Indenture, subject to the terms of this Trust Agreement,
and, if an Event of Default occurs and is continuing, the Property Trustee may,
for the benefit of Holders of the Trust Securities, in its discretion, proceed
to protect and enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust Agreement.
(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 Trustees, acting on behalf of the Trust,
shall not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would reasonably be expected to cause the Trust to fail or cease
to qualify as a "grantor trust" for United States Federal income tax purposes,
(iv) incur any indebtedness for borrowed money or (v) take or consent to any
action that would result in the placement of a Lien on any of the Trust
Property. The Trustees shall defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest of
the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Trust Securities, each of the Depositor and the Administrative Trustees, acting
singularly or together, (and, in the case of (i), (iii) and (v) below,
____________________, as authorized representative of the Trust), shall have the
right and responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (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 prepare for filing by the Trust with the
Commission and to execute and file a registration statement on
Form S-3 in relation to the Preferred Trust Securities,
including any amendments thereto and to take any action
necessary or desirable to sell the Preferred Trust Securities
in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take
appropriate action to qualify or register for sale all or part
of the Preferred Trust 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 in connection with the sale of Preferred Trust
Securities;
-11-
(iii) to select the investment banker or bankers to
act as underwriters with respect to the offer and sale by the
Trust of Preferred Trust Securities ("Offer") and negotiate
the terms of an Underwriting Agreement and pricing agreement
providing for the Offer;
(iv) to execute and deliver on behalf of the Trust
the Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
(v) to take any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are hereby 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
Investment Company Act or classified other than as a "grantor trust" for United
States Federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Debenture Issuer 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 its discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the Holders of the Preferred Trust Securities.
Section 2.08. Assets of Trust.The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust ▇▇▇▇▇▇▇▇.▇▇▇▇▇ 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 Securityholders in accordance with this Trust Agreement.
ARTICLE III
Payment Account
Section 3.01. Payment Account.(a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any Paying Agent appointed by the Administrative Trustees 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 Holders
of Trust Securities and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein. The Property Trustee
shall have no liability in any respect whatsoever in regards to any moneys or
other property deposited in the Payment Account at an institution other than the
Property Trustee.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal 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 IV
Distributions; Redemption
Section 4.01. Distributions.(a)Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not
there are funds of the Trust available for the payment of
Distributions. Distributions shall accrue from the Closing Date, and,
except in the event (and to the extent) that the Depositor exercises
its right to extend the interest payment period for the Debentures
pursuant to Section 312 of the Subordinated Indenture, shall be payable
quarterly in arrears on _________, _________, __________, and
__________ of each year, commencing on _______, ____. If any date on
which
-12-
Distributions are otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall 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) in each case,
with the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with this Section
4.01(a), a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any quarterly period shall
be computed on the same basis as interest is calculated on the Debentures. If
the interest payment period for the Debentures is extended pursuant to Section
312 of the Subordinated Indenture, then Distributions on the Trust Securities
will be deferred for the period equal to the extension of the interest payment
period for the Debentures and the rate per annum at which Distributions on the
Trust Securities accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust Securities during
any such extended interest payment period is equal to the aggregate amount of
interest (including, to the extent permitted by law, interest payable on unpaid
interest at the percentage rate per annum set forth above, compounded quarterly)
that accrues during any such extended interest payment period on the Debentures.
The amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that the
Trust has funds 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 one Business Day prior to the relevant Distribution Date, if Trust
Securities are in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only form.
Section 4.02. Redemption.(a) On each Debenture Redemption
Date and at the maturity date ("Maturity Date") for the Debentures (as defined
in the Subordinated Indenture), the Property Trustee will be required to redeem
a Like Amount of Trust Securities at the Redemption Price plus accumulated and
unpaid Distributions to the Redemption Date or Maturity Date, as the case may
be.
(b) Notice of redemption 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 each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of
accumulated and unpaid Distributions to be paid on the
Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the
total Liquidation Amount of the particular Trust Securities to
be redeemed;
(v) that on the Redemption Date the Redemption
Price plus accumulated and unpaid Distributions to the
Redemption Date 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
(vi) if the Preferred Trust Securities are no
longer held in book-entry only form, the place and address
where the Holders shall surrender their Preferred Trust
Securities Certificates.
-13-
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the Redemption Date with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price plus accumulated and unpaid Distributions to the Redemption
Date shall be deemed payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Trust Securities, then, by 12:00 noon, New York time,
on the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price plus accumulated and unpaid Distributions to the Redemption
Date and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date to the Holders thereof upon surrender of their Preferred Trust
Securities Certificates and Common Trust Securities Certificates.
Notwithstanding the foregoing, Distributions on the Trust Securities with
respect to Distribution Dates occurring 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
on the Redemption Date, all rights of Securityholders holding Trust Securities
so called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date thereof, but without interest thereon, and such Trust Securities
will cease to be Outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on such date plus
accumulated and unpaid Distributions to such Redemption Date shall 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
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price plus accumulated
and unpaid Distributions in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Trust Securities Guarantor pursuant to the Trust Securities Guarantee,
Distributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price plus accumulated and
unpaid Distributions is actually paid, in which case the actual payment date
will be deemed the date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities Register
for the Trust Securities on the relevant record date, which shall be one
Business Date prior to the relevant Redemption Date; provided, however, that in
the event that the Preferred Securities do not remain in book-entry-only form,
the relevant record date shall be the date fifteen days prior to the relevant
Redemption Date.
(f) Subject to Section 4.03(a), 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 to the Common Trust Securities and to the Preferred Trust Securities
in the proportion that the aggregate Liquidation Amount of each is to the
aggregate Liquidation Amount of all outstanding Trust Securities. The particular
Preferred Trust 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 Trust Securities not previously called for redemption, by such method
as the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Trust Securities of a
denomination larger than $25. The Property Trustee shall promptly notify the
Transfer Agent and Registrar in writing of the Preferred Trust Securities
selected for redemption and, in the case of any Preferred Trust 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 Trust Securities shall
relate, in the case of any Preferred Trust Securities redeemed or to be redeemed
only in part, to the portion of the Liquidation Amount of Preferred Trust
Securities which has been or is to be redeemed.
Section 4.03. Subordination of Common Trust Securities.(a)
Payment of Distributions (including Additional Amounts, if applicable) on, and
the Redemption Price plus accumulated and unpaid
-14-
Distributions 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 resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of, any Common Trust
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Trust Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Trust Securities for all
distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price plus accumulated and unpaid Distributions the full
amount of such Redemption Price plus accumulated and unpaid Distributions on all
Outstanding Preferred Trust Securities, shall have been made or provided for,
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price plus accumulated and
unpaid Distributions of, Preferred Trust Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common Trust
Securities will be deemed to have waived any right to act with respect to any
such Event of Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Trust Securities have been
cured, waived or otherwise eliminated. Until all such Events of Default under
this Trust Agreement with respect to the Preferred Trust Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall, to the
fullest extent permitted by law, act solely on behalf of the Holders of the
Preferred Trust Securities and not the Holder of the Common Trust Securities,
and only the Holders of the Preferred Trust Securities will have the right to
direct the Property Trustee to act on their behalf.
Section 4.04. Payment Procedures.Payments in respect of the
Preferred Trust Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Preferred Trust Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository in immediately
available funds, which shall credit the relevant Persons' accounts at such
Securities Depository on the applicable Distribution Dates. Payments in respect
of the Common Trust Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holder of the Common Trust
Securities.
Section 4.05. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense and
direction, 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) the Internal Revenue Service Form 1041 (or
any successor 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 the extent required by law, to each Securityholder the related
Internal Revenue Service Form 1099 (or any successor form) and the information
required to be provided on such form. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such returns, reports
and schedules promptly after such filing or furnishing. The Trustees shall
comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.06. Payments under Indenture.
Any amount payable hereunder to any Holder of Preferred Trust
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received pursuant to Section 808 of the Subordinated
Indenture.
[Section 4.07. Remarketing.]
[Add remarketing and coupon reset provisions if Securities are
issued in connection with Stock Purchase Units]
-15-
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership.Upon the creation of the Trust
by the contribution by the Depositor pursuant to Section 2.03 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 5.02. The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates shall
be executed on behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee and, if executed on behalf of the Trust by facsimile
signature, the Preferred Trust Securities shall be countersigned by the Transfer
Agent and Registrar or its agent. 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
and, in the case of Preferred Trust Securities, if executed by facsimile
signature, countersigned by the Transfer Agent and Registrar or its agent, shall
be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04 or
5.12. Every Person, by virtue of having become a Securityholder, shall be deemed
to have expressly assented and agreed to the terms of, and shall be bound by,
this Trust Agreement, the Trust Securities Guarantee and the Subordinated
Indenture.
Section 5.03. Execution and Delivery of Trust Securities
Certificates.On the Closing Date, the Administrative Trustees, or any one of
them, shall cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.04 and 2.05, to be executed on behalf of the
Trust, and in the case of Preferred Trust Securities executed by facsimile
signature, countersigned by the Transfer Agent and Registrar, or its agent, and
delivered to or upon the written order of the Depositor signed by its chairman
of the board, any of its vice presidents or its treasurer, without further
corporate action by the Depositor, in authorized denominations.
Section 5.04. Registration of Transfer and Exchange of Trust
Securities Certificates.The Transfer Agent and Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of Preferred Trust Securities Certificates and the Common Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Trust Securities
Certificates) and registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. The Property Trustee shall be the
initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any Preferred
Trust Securities Certificate at the office or agency maintained pursuant to
Section 5.08, the Administrative Trustees, or any one of them, shall execute on
behalf of the Trust by manual or facsimile signature and, if executed on behalf
of the Trust by facsimile signature, cause the Transfer Agent and Registrar or
its agent to countersign and deliver, in the name of the designated transferee
or transferees, one or more new Preferred Trust Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount. At the option
of a Holder, Preferred Trust Securities Certificates may be exchanged for other
Preferred Trust Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Trust Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Administrative
Trustees and the Transfer Agent and Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Preferred Trust
Securities Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Transfer Agent and
Registrar in accordance with its
-16-
customary procedures. The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Trust Securities during a period
beginning at the opening of business 15 calendar days before the day of mailing
of a notice of redemption of any Preferred Trust Securities called for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Preferred Trust Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Trust Securities Certificates, but the
Transfer Agent and 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 Trust Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.If (a) any mutilated Trust Securities Certificate shall
be surrendered to the Transfer Agent and Registrar, or if the Transfer Agent and
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 Transfer Agent and Registrar and the Administrative Trustees such security
or indemnity as may be required by them to save each of them and the Depositor
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 by manual or facsimile
signature and, if execution on behalf of the Trust is by facsimile signature, in
the case of Preferred Trust Securities shall also cause the Transfer Agent and
Registrar or its agent to countersign; and the Administrative Trustees, or any
one of them, and, if executed on behalf of the Trust by facsimile signature, in
the case of Preferred Trust Securities the Transfer Agent and Registrar or its
agent, shall make available for 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 class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent and 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 duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, destroyed, lost or stolen Trust Securities
Certificates.
Section 5.06. Persons Deemed Securityholders.Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Transfer Agent and Registrar, and any agent of the Trustees and
the Transfer Agent and Registrar, shall be entitled to 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
Trustees nor the Transfer Agent and Registrar shall be bound by any notice to
the contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses.The Administrative Trustees shall furnish or cause to be furnished (x)
to the Depositor or the Property Trustee, within 15 days after receipt by any
Administrative Trustee of a request therefor from the Depositor or the Property
Trustee, as the case may be, in writing and (y) to the Property Trustee,
[quarterly not more than 5 days after each ________, ________, ________ and
________ of each year beginning ________] (unless the Property Trustee is the
Transfer Agent and Registrar), a list, in such form as the Depositor or the
Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of a recent date. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or any Trustees accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
Section 5.08. Maintenance of Office or Agency.The Depositor
shall or shall cause the Transfer Agent and Registrar to maintain in The City of
New York, an office or offices or agency or agencies where
-17-
Preferred Trust Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Depositor, the
Trust or the Transfer Agent and Registrar in respect of the Trust Securities and
the Trust Agreement may be served. The Depositor initially designates
______________________________, ____________________, New York, New York ______
as its principal office for such purposes. The Depositor shall or shall cause
the Transfer Agent and Registrar to give prompt written notice to the Depositor,
The Trust Securities Guarantor, the Property Trustee, the Administrative
Trustees and to the Securityholders of any change in the location of the
Securities Register or any such office or agency. If at any time the Depositor
shall fail to maintain such office or agency or shall fail to furnish the
Property Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Property Trustee, and the Depositor hereby appoints the Property Trustee its
agent and the agent of the Trust to receive all such presentations, surrenders,
notices and demands.
Section 5.09. Appointment of Paying Agent.The Paying Agent
shall make Distributions to Securityholders from the Payment Account and shall
report the amounts of such Distributions to the Administrative Trustees and the
Property Trustee. 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 Property Trustee shall be entitled to rely upon a
certificate of the Paying Agent stating in effect the amount of such funds so to
be withdrawn and that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one of them may
revoke such power and remove the Paying Agent if the Administrative Trustee or
any one of them determines in its 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
it may choose any co-paying agent that is acceptable to the Administrative
Trustees, the Debenture Issuer, and the Depositor. The Paying Agent shall be
permitted to resign upon 30 days' written notice to the Administrative Trustees,
the Property Trustee, the Debenture Issuer and the Depositor. In the event of
the removal or resignation of the Property Trustee as Paying Agent, the
Administrative Trustees shall appoint a successor that is reasonably acceptable
to the Property Trustee, the Debenture Issuer and the Depositor to act as Paying
Agent (which shall be a bank, trust company or an Affiliate of the Depositor).
The Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon resignation or removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the requirements
with respect to paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Trust Securities by
Depositor.On the Closing Date, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Trust Securities. Except
in connection with a transaction involving the Depositor that would be permitted
under Article Eleven of the Subordinated Indenture, any attempted transfer of
the Common Trust Securities shall, to the fullest extent permitted by law, be
void. The Administrative Trustees shall cause each Common Trust Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT."
Common Trust Securities Certificates representing the Common Trust Securities
shall be issued to the Depositor in the form of a typewritten or definitive
Common Trust Securities Certificate.
Section 5.11. Definitive Preferred Trust Securities
Certificates.Definitive Preferred Trust Securities Certificates shall be
typewritten, printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Administrative Trustees, as evidenced
by the execution thereof by the Administrative Trustees, or any one of them. The
Administrative Trustees, or any one of them, shall execute on behalf of the
Trust by manual or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent and Registrar or its agent,
the Definitive Preferred Trust Securities Certificates initially in accordance
with the instructions of the Depositor complying with Section 5.03. Neither the
Transfer
-18-
Agent and Registrar nor any of the Administrative Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
Section 5.12. Book-Entry System.Some or all of the Preferred
Trust Securities may be registered in the name of a securities depository
("Securities Depository") or a nominee therefor, and held in the custody of the
Securities Depository or a custodian thereof. In such event, a single
certificate will be issued and delivered to the Securities Depository for such
Preferred Trust Securities, in which case the Owners of such Preferred Trust
Securities will not receive physical delivery of certificates for Preferred
Trust Securities. Unless Definitive Preferred Trust Securities Certificate are
delivered to the Owners of Preferred Trust Securities as provided herein, all
transfers of beneficial ownership interests in such Preferred Trust Securities
will be made by book-entry only, and no investor or other party purchasing,
selling or otherwise transferring beneficial ownership of the Preferred Trust
Securities will receive, hold or deliver any certificate for Preferred Trust
Securities. The Depositor, the Trustees and the Paying Agent will recognize the
Securities Depository or its nominee as the Holder of Preferred Trust Securities
for all purposes, including payment, notices and voting and shall have no
payment, notice or communication obligations to the Owners.
The Administrative Trustees, at the direction and expense of
the Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a letter of representations or other agreement
with such Securities Depository to establish procedures with respect to the
Preferred Trust Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Trust Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Trust
Securities.
Whenever the beneficial ownership of any Preferred Trust
Securities is determined through the books of a Securities Depository, the
requirements in this Trust Agreement of holding, delivering or transferring such
Preferred Trust Securities shall be deemed modified with respect to such
Preferred Trust Securities to meet the requirements of the Securities Depository
with respect to actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such Preferred Trust
Securities shall, while such Preferred Trust Securities are in a book-entry
system, be satisfied by the notation on the books of the Securities Depository
in accordance with applicable state law.
Definitive Preferred Trust Securities Certificates will be
issued and delivered to the Owners of such Preferred Trust Securities in
accordance with registration instructions of the Securities Depository if (a)
the Securities Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Trust Securities, and the
Depositor does not appoint a successor Securities Depository within 90 days
after such discontinuance, or (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Securities Depository.
Section 5.13. Rights of Securityholders.The legal title to
the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders shall
not have any right or title therein other than an 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 Preferred Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. The Holders of the Preferred
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.
Section 5.14. Cancellation by Transfer Agent and
Registrar.All Trust Securities Certificates surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
-19-
than the Transfer Agent and Registrar, be delivered to the Transfer Agent and
Registrar and, if not theretofore canceled, shall be promptly canceled by the
Transfer Agent and Registrar. No Trust Securities Certificates shall be issued
in lieu of or in exchange for any Trust Securities Certificates canceled as
provided in this Section, except as expressly permitted by this Trust Agreement.
All canceled Trust Securities Certificates held by the Transfer Agent and
Registrar shall be disposed of in accordance with its customary procedures.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.(a) Except as
provided in this Section 6.01, Section 8.10 and Section 10.03 and as otherwise
required by law, no Holder of Preferred Trust Securities shall have any right to
vote or in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association. If the Property Trustee fails to
enforce its rights under the Debentures or this Trust Agreement, a Holder of
Preferred Trust Securities may, to the fullest extent permitted by law,
institute a legal proceeding directly against the Depositor or the Debenture
Issuer to enforce the Property Trustee's rights under the Debentures or this
Trust Agreement without first instituting any legal proceeding against the
Property Trustee or any other Person. Notwithstanding the foregoing, a Holder of
Preferred Trust Securities may directly institute a proceeding for enforcement
of payment to such Holder of principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation preference amount of the
Preferred Trust Securities of such Holder on or after the due dates specified in
the Debentures.
(b) So long as any Debentures are held by the Property
Trustee, the Property Trustee shall not (i) 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, (ii) waive any past default which is waivable under Section 813
of the Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Subordinated
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority of
the aggregate Liquidation Amount of the Outstanding Preferred Trust Securities;
provided, however, that where a consent under the Subordinated 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 Trust Securities. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Preferred
Trust Securities, except pursuant to a subsequent vote of the Preferred Trust
Securities. The Property Trustee shall notify all Holders of the Preferred Trust
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 Trust Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that such
action will not cause the Trust to be classified other than as a "grantor trust"
for United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of the
Preferred Trust Securities, whether by way of amendment to the Trust Agreement
or otherwise, or (ii) 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 Trust 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 at least majority in aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities.
(d) The Holders of a majority in Outstanding Liquidation
Amount of the Preferred Trust Securities shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee in respect of this Trust Agreement or the Debentures or
exercising any trust or power conferred upon the Property Trustee under this
Trust Agreement; provided, however, that, subject to Section 8.01, the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee being
-20-
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Property Trustee in good faith shall, by a Responsible Officer
or Officers of the Property Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial to
the rights of Holders not party to such direction, and provided further that
nothing in this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction.
Section 6.02. Notice of Meetings.Notice of all meetings of
the Holders of Preferred Trust Securities, stating the time, place and purpose
of the meeting, shall be given by the Administrative Trustees pursuant to
Section 10.08 to each Holder of a Preferred Trust Security, at such Holder's
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 6.03. Meetings of Holders of Preferred Trust
▇▇▇▇▇▇▇▇▇▇.▇▇ annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Holders of 25% of the then
Outstanding Preferred Trust Securities (based upon their aggregate Liquidation
Amount) and the Administrative Trustees or the Property Trustee may, at any time
in their discretion, call a meeting of Holders of Preferred Trust Securities to
vote on any matters as to which the Holders of Preferred Trust Securities are
entitled to vote.
Holders of at least a majority of the then Outstanding
Preferred Trust Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Holders of Preferred Trust Securities present, in person or by proxy,
holding at least a majority of the then Outstanding Preferred Trust Securities
(based upon their aggregate Liquidation Amount) present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04. Voting Rights.Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, ▇▇▇.▇▇ any meeting of Securityholders,
any Securityholder 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. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, or, if earlier, until eleven months after it is sent 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 6.06. Securityholder Action by Written Consent.Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting and without prior notice if Securityholders holding a majority of all
Outstanding Trust Securities 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 (based upon their
aggregate Liquidation Amount).
Section 6.07. Record Date for Voting and Other Purposes.For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or to vote by written consent without prior
-21-
notice, 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 Administrative Trustees may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action including action
to be taken by written consent, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08. Acts of Securityholders.Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) 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 acknowledgements 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 deems sufficient.
The ownership of Preferred Trust Securities shall be proved by
the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
Section 6.09. Inspection of Records.Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
-22-
ARTICLE VII
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee.The Property Trustee and any
successor Property Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation, trust
company or national association duly incorporated, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it 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;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or constitute a
breach of the Property Trustee's charter or by-laws; and
(e) the execution, delivery and performance by the Property
Trustee of this Trust Agreement does not require the consent or approval of, the
giving of notice to, or the registration with any Federal or state banking
authority having jurisdiction over its trust powers.
Section 7.02. Delaware Trustee.The Delaware Trustee and any
successor Delaware Trustee represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation, trust
company or national association duly incorporated, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it 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;
(d) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and, in either case, a
Person that satisfies for the Trust the requirements of Section 3807 of the
Delaware Statutory Trust Act;
(e) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not (i) violate the Delaware Trustee's
charter or by-laws or (ii) violate any law, governmental rule or regulation of
the State of Delaware governing the banking or trust powers of the Delaware
Trustee or any order, judgment or decree applicable to the Delaware Trustee; and
(f) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement does not require the consent or approval of, the
giving of notice to, or the registration with any Federal or state banking
authority having jurisdiction over its banking or trust powers.
-23-
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities. (a) The
rights, immunities, duties and responsibilities of the Trustees shall be
restricted to those set forth in the express provisions of this Trust Agreement
and, in the case of the Property Trustee, as provided in the Trust Indenture
Act, and no implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. For purposes of Sections 315(a) and
315(c) of the Trust Indenture act, the term "default" is hereby defined as an
Event of Default which has occurred and is continuing. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. 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. To the extent that, at law or in
equity, an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
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 8.01(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) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of the
Trust Property shall be to deal with such property in a
similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections,
exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust
Indenture Act, the Delaware Statutory Trust Act and, to the
extent applicable, Rule 3a-7 under the Investment Company Act
or any successor rule thereunder;
(ii) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Trust Property or the payment
of any taxes or assessments levied thereon or in connection
therewith;
(iii) 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. Money held by the Property
Trustee need not be segregated from other funds held by it
except in relation to the Payment Account established by the
Property Trustee pursuant to this Trust Agreement and except
to the extent otherwise required by law; and
(iv) 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
-24-
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
(d) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall any Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Trustees or the Depositor.
Section 8.02. Notice of Defaults.(a) Within ninety (90) days
after the occurrence of any default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such default to the Securityholders, the Depositor, the Trust
Securities Guarantor and the Administrative Trustees, unless such default shall
have been cured or waived before the giving of such notice, provided that,
except in the case of a payment default, the Property Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
of the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
(b) Within five Business Days after receipt of notice of the
Debenture Issuer's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Administrative Trustees, unless
such exercise shall have been revoked.
Section 8.03. Certain Rights of Property Trustee.Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this
Trust Agreement the Property Trustee is required to decide
between alternative courses of action or (B) 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 (C) 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
Preferred Trust Securityholders 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. The Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee
does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice
(which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officer's
-25-
Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative
Trustees;
(iv) the Property Trustee may consult with counsel
of its selection (which counsel may be counsel to the Property
Trustee, Depositor or the Trust Securities Guarantor or any of
their Affiliates, and may include any of their employees) and
the written 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;
(v) 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
Securityholder pursuant to this Trust Agreement, unless such
Securityholder shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with
such request or direction; provided that, nothing contained in
this Section 8.03(v) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Trust Agreement;
(vi) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, approval,
bond, debenture, note or other evidence of indebtedness or
other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Property Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Depositor personally or by agent
or attorney;
(vii) 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 or attorneys, and
the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) 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;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to
the Trust Securities unless either (A) a Responsible Officer
of the Property Trustee shall have actual knowledge of the
default or Event of Default or (B) written notice of such
default or Event of Default shall have been given to the
Property Trustee by the Depositor, the Administrative Trustees
or by any Holder of the Trust Securities;
(x) 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;
and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Property Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it;
-26-
(xii) the Property Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(including any financing or continuation statement or any tax
or securities form) (or any rerecording, refiling or
reregistration thereof);
(xiii) 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;
(xiv) 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 (A) may request instructions from the Holders of the
Trust Securities, which instructions may only be given by the
Holders of the same Liquidation Amount of the Trust Securities
as would be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such remedies,
rights or actions, (B) may refrain from enforcing such remedy
or right or taking such other action until such instructions
are received, and (C) shall be protected in acting in
accordance with such instructions; and
(xv) unless otherwise expressly provided herein,
any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate.
Section 8.04. Not Responsible for Recitals or Issuance of
Securities.The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Debentures or the Trust Securities. The Trustees shall not
be accountable for the use or application by the Trust of the proceeds of the
Trust Securities.
Section 8.05. May Hold Securities.Any Trustee or any 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 Sections 8.08 and 8.13,
and except as provided in the definition of the term "Outstanding" in Article I,
may otherwise deal with the Trust with the same rights it would have if it were
not a Trustee or such agent.
Section 8.06. Compensation; Fees; Indemnity.The Depositor
agrees:
(i) to pay to the Trustees from time to time such
reasonable compensation as shall be agreed in writing with the
Depositor for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably 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 their agents and counsel),
except any such expense, disbursement or advance as may be
attributable to their negligence (gross negligence, in the
case of any Administrative Trustee), bad faith or willful
misconduct; and
(iii) to the fullest extent permitted by applicable
law, to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability
or expense incurred without negligence (gross negligence, in
the case of any Administrative Trustee or the Delaware
Trustee), bad faith or willful misconduct on its part, arising
out of or in connection with the acceptance or administration
of the trust or trusts under this Trust Agreement, including
the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
No Trustee may claim any Lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.06.
-27-
In addition to the rights provided to each Trustee pursuant to
the provisions of the immediately preceding paragraph of this Section 8.06 and
without prejudice to any rights available to the Trustees under applicable law,
when a Trustee incurs expenses or renders services in connection with an Event
of Default resulting from a Bankruptcy Event with respect to the Trust, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section 8.07. Certain Trustees Required; Eligibility.(a) here
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that 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 VIII.
(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 such
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 that otherwise meets the requirements of applicable Delaware
law and that shall act through one or more persons authorized to bind such
entity.
Section 8.08. 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. The
Subordinated Indenture and the securities of any series issued thereunder and
the Trust Securities Guarantee Agreement shall be deemed to be specifically
described in this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.09. Co-Trustees and Separate ▇▇▇▇▇▇▇.▇▇ any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Administrative Trustees, by agreed action
of the majority of such Trustees (except as provided in the following sentence),
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
-28-
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(1) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery, and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of any Trustee, or
any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee hereunder.
(6) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of
▇▇▇▇▇▇▇▇▇.▇▇ resignation or removal of any Trustee (as the case may be, the
"Relevant Trustee") and no appointment of a successor Relevant Trustee pursuant
to this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable requirements of
Section 8.11.
The Relevant Trustee may resign at any time by giving written
notice thereof to the Securityholders, the Depositor and the other Trustees,
except that notice is only required to be delivered to the Securityholders in
the event that the Property Trustee or the Delaware Trustee is the resigning
Relevant Trustee. If the instrument of acceptance by a successor Relevant
Trustee required by Section 8.11 shall not have been delivered to the resigning
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Common
Trust Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority of the aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities, delivered to
the Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be appointed, replaced or removed solely by the
Common Trust Securityholder at any time.
-29-
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Debenture
Event of Default shall have occurred and be continuing, the Common Trust
Securityholder, by Act of the Common Trust Securityholder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Trust Securityholders, by Act of the Preferred Trust Securityholders of a
majority in aggregate Liquidation Amount of the Outstanding Preferred Trust
Securities delivered to such retiring Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when a Debenture Event of Default shall have occurred and be continuing,
the Common Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustees shall promptly appoint a successor Administrative
Trustee or Trustees and such successor Administrative Trustee or Trustees shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Trust
Securityholders or the Preferred Trust Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Property Trustee or Delaware Trustee and each appointment of a
successor to such Trustee to all Securityholders in the manner provided in
Section 10.08 and shall give notice to the Depositor. Such notice shall include
the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
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 (i) the unanimous act of remaining Administrative
Trustees if there are at least two of them or (ii) otherwise by the Depositor
(with the successor in each case being an individual who satisfies the
eligibility requirements for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.07). Additionally, notwithstanding the
foregoing or any other provision of this Trust Agreement, in the event the
Depositor reasonably believes that any Administrative Trustee who is a natural
person has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
No Trustee shall be liable for the acts or omissions to act of
any successor Trustee.
Section 8.11. Acceptance of Appointment by ▇▇▇▇▇▇▇▇▇.▇▇ case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee (if requested by the Depositor) and each successor Trustee
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which 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 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, upon payment of all sums owed to it, duly assign, transfer and
deliver to such successor Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
retiring Relevant Trustee 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 preceding paragraph.
-30-
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 VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business.Any Person into which the Property Trustee or 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 Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any paper,
the giving of any notice or any further act on the part of any of the parties
hereto.
Section 8.13. 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 the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee.(a) The Property
Trustee shall transmit to Securityholders such reports concerning the Property
Trustee and its actions under this Trust Agreement as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be transmitted by the Property
Trustee pursuant to Section 313(a) of the Trust Indenture Act shall be dated as
of the next preceding September 15, and shall be transmitted no later than
November 15 of each year, commencing September 15, 200_.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
exchange, the Nasdaq National Market or such other interdealer quotation system
or self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor. The Depositor will
notify the Property Trustee of any such listing or trading.
Section 8.15. 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, if any, and the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act,
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered
annually on or before ____________ in each year, beginning ____________.
Delivery of such reports, information and documents by the Depositor to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Depositor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officer's Certificates).
Section 8.16. 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 (including
any covenants compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act may be given in the form of an
Officer's Certificate.
Section 8.17. Number of Trustees.(a) The number of Trustees
shall be five, provided that the Depositor, by written instrument, may increase
or decrease the number of Administrative Trustees.(b) If a Trustee ceases to
hold office for any reason and the number of Administrative Trustees is not
reduced pursuant to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy shall be filled
with a Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an
-31-
Administrative Trustee in accordance with Section 8.10, 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 8.18. 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 Sections 2.07(a) and 2.07(c), including
any registration statement or amendment thereto filed with the Commission, or
making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19. Fiduciary Duty.(a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Trust Agreement shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties imposed on
the Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered Person;
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Trust Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of
the Indemnified Person at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement an
Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Trust Agreement or by applicable law.
Section 8.20. Delaware ▇▇▇▇▇▇▇.▇▇ is expressly understood and
agreed by the parties hereto that in fulfilling its obligations as Delaware
Trustee hereunder on behalf of the Trust (i) any agreements or instruments
-32-
executed and delivered by The Bank of New York (Delaware) are executed and
delivered not in its individual capacity but solely as Delaware Trustee under
this Trust Agreement in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Trust is made and intended not as
representations, warrants, covenants, undertakings and agreements by the
Delaware Trustee in its individual capacity but is made and intended for the
purpose of binding only the Trust, and (iii) under no circumstances shall the
Delaware Trustee in its individual capacity be personally liable for the payment
of any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaking by the Trust under this Trust Agreement, except if such breach or
failure is due to any gross negligence or willful misconduct of the Delaware
Trustee.
ARTICLE IX
Dissolution and Liquidation
Section 9.01. Dissolution Upon Expiration Date.Unless earlier
dissolved, the Trust shall automatically dissolve on December 31, 20__ (the
"Expiration Date") and the Trustees shall take such action as is required by
Section 9.04.
Section 9.02. Early Dissolution.Upon the first to occur of
any of the following events (such first occurrence, an "Early Termination
Event"):
(i) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor;
(ii) the redemption of all of the Preferred Trust
Securities;
(iii) an order for judicial dissolution of the Trust
having been entered by a court of competent jurisdiction;
(iv) the election by the Depositor to dissolve the
Trust and, after satisfaction of liabilities to creditors of
the Trust, distribute the Debentures to the Holders of
Preferred Trust Securities in liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action as is required
by Section 9.04.
Section 9.03. Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04. Liquidation.(a) Upon the Expiration Date or if
an Early Termination Event specified in clause (i), (iii) or (iv) of Section
9.02 occurs, after satisfaction of creditors of the Trust, if any, as provided
by applicable law, the Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be appropriate by
distributing to each Securityholder a Like Amount of Debentures, subject to
Section 9.04(e). Notice of liquidation shall be given by the Administrative
Trustees 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 appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
-33-
(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 a Like
Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or, if Section 9.04(e) applies,
receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.(b)
Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, in
order to effect the liquidation of the Trust hereunder, and
any resulting distribution of the Debentures to
Securityholders, the Administrative Trustees shall establish a
record date for such distribution (which shall be not more
than 45 days prior to 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 Sections 9.02(ii), 9.04(d) or 9.04(e) apply,
after any Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Debentures will,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, be issued to Holders of Trust Securities Certificates, upon
surrender of such Trust Securities Certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such Trust Securities Certificates are so
surrendered (and until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (iv) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing,
and either (i) in the Opinion of Counsel to the Depositor experienced in such
matters, there would in all cases, after effecting the dissolution of the Trust,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, and the distribution of the Debentures to the Holders of the
Preferred Trust Securities in exchange therefor, be more than an insubstantial
risk that an Adverse Tax Consequence would continue to exist or (ii) the
Debentures are not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event. Whether or not a Tax Event has
occurred, the Depositor has the right, at any time, to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, cause the Debentures to be distributed to the Holders of the
Preferred Trust Securities and Common Trust Securities in liquidation of the
Trust on a pro rata basis. [Add Provisions to substitute Treasury Securities if
securities are issued in connection with Stock Purchase Units]
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, 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
practical, the Trust Property shall be liquidated, and the Trust shall be
wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such winding up, 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 Common Trust Securities will be
entitled to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Trust Securities, except
that, if a Debenture Event of Default (or event that with the lapse of time or
giving of notice would become an Event of Default) has occurred and is
continuing, the Preferred Trust Securities shall have a priority over the Common
Trust Securities.
-34-
Section 9.05. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.The Trust may not merge, consolidate, amalgamate with
or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person, except pursuant to this
Article IX. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of at least a
majority in Liquidation Amount of the Preferred Trust Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge, consolidate, amalgamate,
with or into, or 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 Trust Securities other
securities having substantially the same terms as the Preferred Trust Securities
(the "Successor Securities") so long as the Successor Securities rank the same
as the Preferred Trust Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity possessing substantially the same powers and duties as the
Property Trustee is appointed to hold the Debentures, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Trust Securities are then listed or traded,
if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Trust 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, and (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
Investment Company Act and (viii) the Depositor or its permitted transferee owns
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 all the Preferred Trust
Securities, consolidate, amalgamate or merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person or permit any other Person to consolidate, amalgamate or
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 X
Miscellaneous Provisions
Section 10.01. Payment of Expenses of the Trust. Pursuant to
Article Three of the Supplemental Indenture No. 1 to the Indenture, the Trust
Securities Guarantor has agreed to pay to the Trust, and reimburse the Trust
for, the full amount of any costs, expenses or liabilities of the Trust (other
than obligations of the Trust to pay the Holders of any Preferred Securities or
Common Securities), including, without limitation, any taxes, duties or other
governmental charges of whatever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority. Such payment
obligation includes any such costs, expenses or liabilities of the Trust that
are required by applicable law to be satisfied in connection with a termination
of the Trust.
-35-
Section 10.02. Limitation of Rights of Securityholders. The
death, incapacity, bankruptcy, dissolution or termination of any Person having
an interest, beneficial or otherwise, in a Trust Security shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Section 10.03. Amendment. (a) In addition to amendments
contemplated by Section 8.11, this Trust Agreement may be amended from time to
time by a majority of the Administrative Trustees, the Property Trustee and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, (ii) to change the name of the Trust or (iii) 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 not be classified for United States
Federal income tax purposes other than as a "grantor trust" at any time that any
Trust Securities are outstanding or to ensure the Trust's exemption from the
status of an "investment company" under the Investment Company Act; provided,
however, that such action shall not adversely affect in any material respect the
interests of any Securityholder and, in the case of clause (i), any such
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by the
Administrative Trustees, the Property Trustee and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than a majority
(based upon Liquidation Amounts) of the Outstanding Trust Securities 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 Trust's status as a grantor trust for
Federal income tax purposes or the Trust's exemption from status as an
"investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder, this
Trust Agreement may not be amended to (i) adversely change the amount or timing
of any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Securityholder
to institute suit for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would not be classified as a "grantor trust" for
United States Federal income tax purposes or would to fail or cease to qualify
for the exemption from status of an "investment company" under the Investment
Company Act afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, the Depositor and the Trustees may, but shall not be obligated to,
enter into any amendment which imposes any additional obligation on the
Depositor or any Trustee or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(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) The Delaware Trustee may join in the execution of any
amendment to the Trust Agreement and the Property Trustee and the Delaware
Trustee are entitled to rely upon an Opinion of Counsel as conclusive evidence
that any amendment to this Trust Agreement entered into pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the terms of this Section
10.03, has been duly authorized by and lawfully executed and delivered on behalf
of the other requisite parties, and that it is proper for the Property Trustee
under the provisions of this Section 10.03 to accept the additional trusts
created thereby and, if so requested, for the Delaware Trustee to join in the
execution thereof.
-36-
Section 10.04. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ 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 10.05. Governing Law.THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST, THE DEPOSITOR,
THE TRUST SECURITIES GUARANTOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES), PROVIDED, THAT THE IMMUNITIES AND STANDARD OF CARE OF THE
PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
Section 10.06. Successors.This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Depositor,
the Trust Securities Guarantor, the Trust or the Relevant Trustees or any of
them, including any successor by operation of law.
Section 10.07. Headings.The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand.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 any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Trust Securityholder, to such
Preferred Trust Securityholder as such Securityholder's name and address may
appear on the Securities Register, and (ii) in the case of the Depositor, the
Common Securityholder or the Trust Securities Guarantor, to Southwestern
Electric Power Company, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer, facsimile no. 614-2231687 (until another address is given to the
Property Trustee). Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or facsimile transmission.
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 given to the other parties hereto) as follows: (i) with respect to
the Property Trustee, to The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ________________________, (ii) with respect to the
Delaware Trustee, to The Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to the Property Trustee at the address
set forth in (i) above, Attention: ________________________, and (iii) with
respect to the Trust or the Administrative Trustees, at the address above for
notice to the Depositor, marked Attention: Administrative Trustees for SWEPCo
Capital Trust III. Such notice, demand or other communication to or upon the
Trust, the Delaware Trustee or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust,
the Delaware Trustee or the Property Trustee.
Section 10.09. Agreement Not to Petition.Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in accordance
with Article IX, it shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation 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 10.09, the
Property Trustee agrees, for the benefit of Securityholders, that 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
-37-
and should be estopped and precluded therefrom and such other defenses, if any,
as counsel for the Property Trustee or the Trust may assert. The provisions of
this Section 10.09 shall survive the termination of this Trust Agreement.
Section 10.10. Conflict with Trust Indenture Act.(a) This
Trust Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed 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 a 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 or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(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 interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF
ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND
ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.11. 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.
-38-
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day and year first
above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
as Depositor and Trust Securities Guarantor
By: ____________________________________
Title:
THE BANK OF NEW YORK,
as Property Trustee
By: ____________________________________,
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: ____________________________________
Title:
____________________________________
as Administrative Trustee
____________________________________
as Administrative Trustee
-39-
EXHIBIT A
CERTIFICATE OF TRUST
OF
SWEPCO CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF SWEPCo Capital Trust III (the "Trust") is
being duly executed and filed by The Bank of New York, a New York banking
corporation, The Bank of New York (Delaware), a Delaware banking corporation,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each an individual, as trustees, to
form a statutory trust under the Delaware Statutory Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. NAME. The name of the statutory trust formed hereby is SWEPCo Capital Trust
III.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the Trust
in the State of Delaware are The Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
-----------------------------------------
Name:
Title:
---------------------------------------,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee
---------------------------------------,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C -
Certificate Evidencing Common Trust Securities
of
SWEPCo Capital Trust III
Common Trust Securities
(liquidation amount $[25] per Common Trust Security)
SWEPCo Capital Trust III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Southwestern Electric Power Company (the "Holder") is the registered owner of
_____ common securities of the Trust representing undivided beneficial interests
in the assets of the Trust and designated the SWEPCo Capital Trust III Common
Trust Securities (liquidation amount $[25] per Common Trust Security) (the
"Common Trust Securities"). Except as permitted by Section 5.10 of the Trust
Agreement (as defined below), the Common Trust 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 Trust Securities are set forth in, and this certificate and the Common
Trust Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of __________ __, ____, as the same may be amended from
time to time (the "Trust Agreement"), including the designation of the terms of
the Common Trust Securities as set forth therein.
Capitalized terms used herein but not defined shall have the
meaning given them in the Trust Agreement. The holder of this certificate is
entitled to the benefits of the Trust Securities Guarantee Agreement of
Southwestern Electric Power Company and ______________________________, as
guarantee trustee, dated as of ___________, _____, as the same may be amended
from time to time, (the "Guarantee") to the extent provided therein.] The Trust
will furnish a copy of the Trust Agreement [and the Guarantee] to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common Trust
Securities as evidence of undivided beneficial interests in the assets of the
Trust.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ___ day of
________, ____.
SWEPCO CAPITAL TRUST I
By: ______________________________
not in his individual capacity,
but solely as Administrative Trustee
EXHIBIT C
[Legend]
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
Of
SWEPCo Capital Trust III
[Title of Securities]
(liquidation amount $[25] per Preferred Trust Security)
SWEPCo Capital Trust III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of _____ preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the SWEPCo Capital Trust III [Title of
Securities] (liquidation amount $[25] per Preferred Trust Security) (the
"Preferred Trust Securities"). The Preferred Trust Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.04 or 5.12 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Trust Securities are set forth
in, and this certificate and the Preferred Trust Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of __________,
____, as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of the Preferred Trust Securities as set
forth therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Trust Agreement. The holder of this certificate is
entitled to the benefits of the Trust Securities Guarantee Agreement of
Southwestern Electric Power Company and ______________________________, as
guarantee trustee, dated as of ____________, ____, as the same may be amended
from time to time, (the "Guarantee") to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Trust Securities as evidence of undivided beneficial interests in the assets of
the Trust.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust.
Dated:
SWEPCO CAPITAL TRUST I
By: ______________________________
not in his individual capacity,
but solely as Administrative Trustee
Countersigned and Registered:
-------------------------------,
Transfer Agent and Registrar
By:
--------------------------------------
(Authorized Signature)
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Trust Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
of the Preferred Trust Securities represented by this Certificate and
irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
attorney to transfer such Preferred Trust Securities Certificate on the books of
the Trust. The attorney may substitute another to act for him or her.
Date: ____________________________
Signature: ________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
Signature: ________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)