AMENDED AND RESTATED TRUST AGREEMENT
By and Among
OMNICOM GROUP INC.
as Sponsor,
-------------------------,
as Property Trustee,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ________ __, 200_
Cross Reference Table*
Section of Section of
Trust Indenture Act of 1939, as amended Trust Agreement
--------------------------------------- ---------------
310(a)......................................... 6.3
310(b)......................................... 6.3
310(c)......................................... Inapplicable
311(a)......................................... 2.2(b)
311(b)......................................... 2.2(b)
311(c)......................................... Inapplicable
312(a)......................................... 2.2(a)
312(b)......................................... 2.2(b); 13.2
312(c)......................................... 13.2
313(a)......................................... 2.3
313(b)......................................... 2.3
313(c)......................................... 2.3
313(d)......................................... 2.3
314(a)......................................... 2.4; 3.6(i); 13.4
314(b)......................................... Inapplicable
314(c)......................................... 2.5
314(d)......................................... Inapplicable
314(e)......................................... 2.5; 13.4
314(f)......................................... Inapplicable
315(a)......................................... 3.9(b); 3.10(a)
315(b)......................................... 2.7
315(c)......................................... 3.9
315(d)......................................... 3.9
316(a)......................................... 2.6(a), (b) and (c)
316(b)......................................... Inapplicable
316(c)......................................... 3.6(e)
317(a)......................................... 3.16; 3.8(e)
317(b)......................................... 3.8(h)
318(a)......................................... 2.1(c)
----------
* This cross-reference table does not constitute part of the agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
Table of Contents
Page
----
ARTICLE 1 INTERPRETATION AND DEFINITIONS.......................................1
Section 1.1. Definitions..................................................1
Section 1.2. Other Definitions............................................8
Section 1.3. Incorporation by Reference of Trust Indenture Act............9
Section 1.4. Rules of Construction........................................9
ARTICLE 2 TRUST INDENTURE ACT..................................................9
Section 2.1. Trust Indenture Act; Application.............................9
Section 2.2. Lists of Holders of Securities...............................9
Section 2.3. Reports by the Property Trustee.............................10
Section 2.4. Periodic Reports to the Property Trustee....................10
Section 2.5. Evidence of Compliance with Conditions Precedent............10
Section 2.6. Trust Enforcement Events; Waiver............................10
Section 2.7. Notice of Trust Enforcement Event...........................12
ARTICLE 3 ORGANIZATION........................................................12
Section 3.1. Name and Organization......................................12
Section 3.2. Office.....................................................12
Section 3.3. Purpose....................................................13
Section 3.4. Authority..................................................13
Section 3.5. Title to Property of the Trust.............................13
Section 3.6. Powers and Duties of the Administrative Trustees...........14
Section 3.7. Prohibition of Actions by the Trust and the Trustees.......16
Section 3.8. Powers and Duties of the Property Trustee..................17
Section 3.9. Duties and Responsibilities of the Property Trustee........19
Section 3.10. Rights of Property Trustee.................................21
Section 3.11. Delaware Trustee...........................................22
Section 3.12. Execution of Documents.....................................22
Section 3.13. Trustees' Disclaimer.......................................23
Section 3.14. Duration of Trust..........................................23
Section 3.15. Mergers....................................................23
Section 3.16. Property Trustee May File Proofs of Claim..................25
ARTICLE 4 SPONSOR.............................................................25
Section 4.1. Responsibilities of the Sponsor.............................25
Section 4.2. Compensation and Indemnification............................26
ARTICLE 5 TRUST COMMON SECURITIES HOLDER......................................26
Section 5.1. Debenture Issuer's Purchase of Common Securities............26
Section 5.2. Covenants of the Common Securities Holder...................26
ARTICLE 6 TRUSTEES............................................................27
Section 6.1. Number of Trustees.........................................27
Section 6.2. Delaware Trustee; Eligibility..............................27
Section 6.3. Property Trustee; Eligibility; Disqualification............27
Section 6.4. Qualifications of Administrative Trustees and
Delaware Trustee Generally.................................28
Section 6.5. Initial Administrative Trustees............................28
Section 6.6. Replacement of Trustees....................................28
Section 6.7. Vacancies among Trustees...................................29
Section 6.8. Effect of Vacancies........................................30
Section 6.9. Meetings...................................................30
Section 6.10. Delegation of Power........................................30
Section 6.11. Successor Trustee by Merger, Etc...........................31
ARTICLE 7 TERMS OF SECURITIES.................................................31
Section 7.1. General Provisions Regarding Securities...................31
Section 7.2. Distributions.............................................34
Section 7.3. Redemption of Securities..................................35
Section 7.4. Redemption Procedures.....................................35
Section 7.5. Voting Rights of Preferred Securities.....................36
Section 7.6. Voting Rights of Common Securities........................39
Section 7.7. Registrar and Paying Agent................................40
Section 7.8. Listing...................................................41
Section 7.9. Transfer and Exchange of Securities.......................41
Section 7.10. Mutilated, Destroyed, Lost and Stolen Securities..........42
Section 7.11. Outstanding Securities....................................42
Section 7.12. Treasury Securities.......................................43
Section 7.13. Temporary Securities......................................43
Section 7.14. Cancellation..............................................43
Section 7.15. Deemed Security Holders...................................43
Section 7.16. Global Securities.........................................43
Section 7.16.1 Terms of Securities.......................................43
Section 7.16.2 Transfer and Exchange.....................................44
Section 7.16.3 Legend....................................................44
Section 7.16.4 Cancellation; Issuance of Registered Securities...........44
Section 7.16.5 Acts of Holders...........................................45
Section 7.16.6 Payments..................................................45
Section 7.16.7 Consents, Declaration and Directions......................45
Section 7.17. CUSIP Numbers.............................................45
Section 7.18. Over-Allotment Option.....................................46
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST................................47
Section 8.1. Dissolution and Termination of Trust........................47
Section 8.2. Liquidation Distribution Upon Dissolution of the Trust......48
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
DELAWARE TRUSTEES OR OTHERS.........................................48
Section 9.1. Liability...................................................48
Section 9.2. Exculpation.................................................49
Section 9.3. Fiduciary Duty..............................................49
Section 9.4. Indemnification.............................................50
Section 9.5. Outside Businesses..........................................53
ARTICLE 10 ACCOUNTING.........................................................54
Section 10.1. Fiscal Year................................................54
Section 10.2. Certain Accounting Matters.................................54
Section 10.3. Banking....................................................54
Section 10.4. Withholding................................................54
ARTICLE 11 AMENDMENTS AND MEETINGS............................................55
Section 11.1. Amendments.................................................55
Section 11.2. Meetings of the Holders of Securities; Action by
Written Consent............................................57
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE...........58
Section 12.1. Representations and Warranties of the Property Trustee.....58
Section 12.2. Representations and Warranties of the Delaware Trustee.....59
ARTICLE 13 MISCELLANEOUS......................................................60
Section 13.1. Notices...................................................60
Section 13.2. Communication by Holders with Other Holders...............61
Section 13.3. Certificate and Opinion as to Conditions Precedent........61
Section 13.4. Statements Required in Certificate or Opinion.............61
Section 13.5. Rules by Trustee and Agents...............................62
Section 13.6. Legal Holidays............................................62
Section 13.7. No Recourse Against Others................................62
Section 13.8. Intention of the Parties..................................62
Section 13.9. Counterparts..............................................62
Section 13.10. Governing Laws............................................62
Section 13.11. Successors................................................62
Section 13.12. Severability..............................................62
Section 13.13. Table of Contents, Headings, Etc..........................63
Exhibits
Exhibit A.........Form Of Preferred Security Certificate
Exhibit B.........Form Of Common Security Certificate
AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement"), dated
as of _________, 200_, is entered into by and among (i) Omnicom Group Inc., a
New York corporation, as sponsor (the "Sponsor"), (ii)(a) ________, as initial
Property Trustee, (b) Chase Manhattan Bank USA, National Association, a Delaware
corporation, as Delaware Trustee, and (c) Xxxx Xxxx, an individual, Xxxxxxx
Xxxxxxxxxxxx, an individual, Xxxxxx X. Xxxxxxxx, an individual, Xxxxxx X.
Xxxxxx, an individual, and Xxxxx X. Xxxxxx, an individual, each of whose address
is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each an "Administrative
Trustee" and, collectively, the "Administrative Trustees" and, together with the
Property Trustee and the Delaware Trustee, the "Trustees", all not in their
individual capacities, but solely as Trustees) and (iii) the several Holders as
hereinafter defined.
RECITALS
WHEREAS, the Delaware Trustee and the Sponsor established Omnicom Capital
Trust [I/II/III] (the "Trust"), a business trust under the Business Trust Act
(as defined, together with other capitalized terms, herein) pursuant to a Trust
Agreement dated as of October 4, 2000 (the "Original Trust Agreement") and a
Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on October 4, 2000;
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial ownership interests in the assets
of the Trust, to invest the proceeds from such sales in the Debentures issued by
the Debenture Issuer, to make Distributions as herein provided and to engage in
only those activities necessary, advisable or incidental thereto; and
WHEREAS, the parties hereto, by this Trust Agreement, amend and restate
each and every term and provision of the Original Trust Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this Trust
Agreement constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions. The following terms have the following
meanings:
"Administrative Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"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" (including, with correlative meanings, the terms "controlled by" and
"under common control with") as used with respect to any person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, directly or indirectly,
whether through the ownership of voting securities or by agreement or otherwise.
"Agreement as to Expenses and Liabilities" means the Agreement as to
Expenses and Liabilities between the Sponsor and Omnicom Capital Trust
[I/II/III] dated as of ________, __, 200_.
"Authorized Officer" of a person means any person that is authorized to
bind such person.
"Bankruptcy Event" means, with respect to any person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such person of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by such person in furtherance of any such action.
"Beneficial Owners" means, for Preferred Securities represented by a
Global Security, the person who acquires an interest in the Preferred Securities
which is reflected on the records of the Depositary through the Depositary
Participants.
"Board Of Directors" means the Board of Directors of the Sponsor or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Sponsor to have been duly adopted by the Board
of Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate.
"Business Day" means, unless otherwise provided by Board Resolution or
Officers' Certificate, any day except a Saturday, Sunday or a legal holiday in
The City of New York on which banking institutions are authorized or required by
law, regulation or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Certificate of Trust" has the meaning specified in the Recitals hereto.
"Closing Date" means the date on which the Preferred Securities are issued
and sold; provided that if the Trust and the Sponsor grant the underwriters or
initial purchasers an option to purchase an additional amount of Preferred
Securities, pursuant to Section 7.18(a), including for the purpose of covering
over-allotments, pursuant to the underwriting agreement or purchase agreement,
as the case may be, and such option is so exercised, then the term "Closing
Date" shall mean such initial or second closing date, as the context requires.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Trust
Agreement, as such specific section or corresponding provision is in effect on
the date of application of the provisions of this Trust Agreement containing
such reference.
"Commission" means the Securities and Exchange Commission or any successor
thereto.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security, substantially in the form of
Exhibit B hereto.
"Common Securities Holder" means Omnicom Group Inc., in its capacity as
purchaser and holder of all of the Common Securities issued by the Trust, or any
permitted successor holder of the Common Securities.
"Corporate Trust Office" means the office of the Property Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Trust Agreement is
located at ________, ________, ________, ________, Attention ________.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder.
"Debentures" means the series of junior subordinated debt securities to be
issued by the Debenture Issuer designated the "____% Junior Subordinated Debt
Securities due ______" and to be purchased by the Trust and held by the Property
Trustee.
"Debenture Issuer" shall mean Omnicom Group Inc., a New York corporation,
in its capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (i) any Administrative Trustee
or any officers, directors, employees, shareholders or agents of any
Administrative Trustee or (ii) any officer, employee or agent of the Trust.
"Delaware Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Securities.
"Depositary Participant" means a member of, or participant in, the
Depositary.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Global Security" means a fully registered, global Preferred Security
Certificate.
"Guarantee" means the Guarantee Agreement, dated as of ________ __, 200_,
of the Sponsor in respect of the Preferred Securities.
"Holder" means a person in whose name a Security is registered; provided,
however, that in determining whether the Holders of the requisite liquidation
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for the purpose of such determination only (and not for
any other purpose hereunder), if the Preferred Securities remain in the form of
one or more Global
Securities and if the Depositary which is the holder of such Global Securities
has sent an omnibus proxy to the Trust assigning voting rights to Depositary
Participants to whose accounts the Preferred Securities are credited on the
record date, the term "Holders" shall mean such Depositary Participants acting
at the direction of the Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Junior Subordinated Indenture, dated as of
__________, 200_, between the Debenture Issuer and ____________________, as
Trustee, pursuant to which the Debentures are to be issued.
"Indenture Event Of Default" has the meaning given to the term "Event of
Default" in the Indenture.
"Indenture Trustee" means _______________________, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Investment Company" means an investment company as defined in the 1940
Act and the regulations promulgated thereunder.
"Investment Company Event" means the receipt by the Trust of an opinion of
a nationally recognized independent counsel (an "1940 Act Opinion"), to the
effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), the Trust is or will be considered an "investment company"
that is required to be registered under the 1940 Act, which Change in 1940 Act
Law becomes effective on or after the Closing Date.
"Majority In Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the TIA, Holder(s) of outstanding Securities,
voting together as a single class, or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities,
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"New York Stock Exchange" means the New York Stock Exchange, Inc. or any
successor thereto.
"1940 Act" means the Investment Company Act of 1940, as amended from time
to time, or any successor legislation.
"Officer" means the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, any Vice President, the Treasurer, the Secretary,
any Assistant Treasurer or any Assistant Secretary of the Sponsor.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Sponsor's principal executive officer, principal financial
officer or principal accounting officer. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such person in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer acting
on behalf of such person, such condition or covenant has been complied with;
provided, that the term "Officers' Certificate," when used with reference to
Administrative Trustees who are natural persons shall mean a certificate signed
by two or more of the Administrative Trustees which otherwise satisfies the
foregoing requirements.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Preferred Security Certificate" means a definitive certificate in fully
registered form representing a Preferred Security, substantially in the form of
Exhibit A.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there are
only two Administrative Trustees, both of them.
"Redemption Price" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer
to repay or redeem, in whole or in part, the Debentures held by the Trust plus
an amount equal to accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
"Responsible Officer" means, with respect to the Property Trustee, any
officer with direct responsibility for the administration of this Trust
Agreement and also means, with respect to a particular corporate trust matter,
any other officer to whom any corporate trust matter is referred because of that
officer's knowledge of and familiarity with a particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Special Event" means a Tax Event or an Investment Company Event.
"Sponsor" means Omnicom Group Inc., a New York corporation, or any
successor entity in a transaction involving the Sponsor that is permitted by
Article VI of the Indenture and pursuant to which the successor agrees in
writing to perform the Sponsor's obligations hereunder.
"Tax Event" means the receipt by the Trust of an opinion of independent
tax counsel experienced in such matters ("Tax Event Opinion"), to the effect
that, as a result of (a) any amendment to, change in or announced prospective
change in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative written decision or pronouncement, or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, or decision is announced on or after the
Closing Date, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to the United States
federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Debenture Issuer on the Debentures is not, or
within 90 days of the date of such opinion will not be, deductible, in whole or
in part, by the Debenture Issuer for United States federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"10% In Liquidation Amount" means, except as provided in the terms of the
Preferred Securities or by the TIA, Holder(s) of outstanding Securities, voting
together as a single class, or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities,
voting separately as a class, who are the record owners of 10% or more of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended from time to time, and as in effect on the date of
this Trust Agreement; provided, however, that in the event the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Trust Order" has the meaning specified in Section 7.1(c)
"Trustee" or "Trustees" means each person who has signed this Trust
Agreement as a trustee, so long as such person shall continue as a trustee in
accordance with the terms hereof, and all other persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such person or persons solely in their capacity as trustees hereunder.
Section 1.2. Other Definitions.
TERM DEFINED IN SECTION
"Common Security" 7.1(a)(ii)
"Direct Action" 3.8(e)
"Fiduciary Indemnified Person" 9.4(b)
"Fiscal Year" 10.1
"Legal Action" 3.6(g)
"Legal Holiday" 13.6
"List Of Holders" 2.2(a)
"Option" 7.18(a)
"Paying Agent" 3.8(h)
"Payment Amount" 7.2(c)
"Preferred Security" 7.1
"Property Account" 3.8(c)
"Registrar" 7.7
"Service Agent" 7.7
"Successor Entity" 3.15(b)(i)
"Successor Security" 3.15(b)(i)b
"Super Majority" 2.6(a)(ii)
"Trust Agreement" Preamble
"Trust Order" 7.1(c)
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Trust Agreement refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Trust Agreement. All terms
used in this Trust Agreement that are defined by the TIA, defined by TIA
reference to another statute or defined by Securities and Exchange Commission
rule under the TIA and not otherwise defined herein are used herein as so
defined.
Section 1.4. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and in the plural include
the singular; and
(d) provisions apply to successive events and transactions.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of the TIA that are
required to be part of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the TIA.
(c) If and to the extent that any provision of this Trust Agreement
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the TIA,
such imposed duties shall control.
(d) The application of the TIA to this Trust Agreement shall not affect
the Trust's classification as a grantor trust for United States federal income
tax purposes and shall not affect the nature of the Securities as equity
securities representing undivided beneficial ownership interests in the assets
of the Trust.
Section 2.2. Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide the Property Trustee at any time when the Property Trustee
is not also acting as Security Registrar for the Securities at least 10 days
before each Distribution payment date and at such other times as the Property
Trustee may request in writing a list, in such form and as of such date as the
Property Trustee may reasonably
may require, of the names and addresses of the Holders of the Securities
("List of Holders"); provided that neither the Sponsor nor the Administrative
Trustees on behalf of the Trust shall be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the
Administrative Trustees on behalf of the Trust. The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity); provided that the Property Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
TIA.
Section 2.3. Reports by the Property Trustee. Within 60 days after May
15 of each year (commencing with the year in which the first anniversary of the
issuance of the Preferred Securities occurs), the Property Trustee shall provide
to the Holders of the Preferred Securities such reports as are required by
Section 313(a) of the TIA, if any, in the form and in the manner provided by
Section 313 of the TIA. The Property Trustee shall also comply with the other
requirements of Section 313 of the TIA. The Sponsor shall promptly notify the
Property Trustee when the Preferred Securities are listed on any stock exchange.
Section 2.4. Periodic Reports to the Property Trustee. Each of the
Sponsor and the Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the TIA (if any) and the compliance certificate required by
Section 314(a)(4) of the TIA in the form, in the manner and at the times
required by Section 314 of the TIA; provided that such compliance certificate
shall be delivered on or before 120 days after the end of each calendar year of
the Sponsor.
Section 2.5. Evidence of Compliance with Conditions Precedent. Each of
the Sponsor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the TIA. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
Section 2.6. Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences; provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement Event
under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater than a
majority in principal amount of the Debentures (a "Super Majority") to be
waived under the Indenture, the related Trust Enforcement Event under the
Trust Agreement may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount of the Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is
hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the TIA. Upon such waiver, any such default shall cease to exist,
and any Trust Enforcement Event with respect to the Preferred Securities arising
therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement and the Preferred Securities, but no such waiver shall extend to any
subsequent or other Trust Enforcement Event with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of a Trust Enforcement Event with respect to the
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Trust Enforcement Event with respect to the
Common Securities for all purposes of this Trust Agreement without any further
act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences; provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Trust Enforcement
Event under the Trust Agreement as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Trust Agreement shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be waived
under the Indenture, except where the Holders of the Common Securities are
deemed to have waived such Trust Enforcement Event under the Trust
Agreement as provided below in this Section 2.6(b), the Trust Enforcement
Event under the Trust Agreement may only be waived by the vote or written
consent of the Holders of at least the proportion in liquidation amount of
the Common Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding; provided,
further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect
to the Common Securities and the consequences thereof until all Trust
Enforcement Events with respect to the Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement
Events with respect to the Preferred Securities have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities.
The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the TIA and such Sections 316(a)(1)(A)
and 316(a)(1)(B) of the TIA are hereby expressly excluded from this Trust
Agreement and the Securities, as permitted by the TIA. Subject to the foregoing
provisions of this Section 2.6(b), upon such cure, waiver or other elimination,
any such default shall cease to exist and any Trust Enforcement Event with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Trust Agreement, but no such waiver shall extend
to any subsequent or other Trust Enforcement Event with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities constitutes a waiver of
the corresponding Trust Enforcement Event with respect to the Preferred
Securities under this Trust Agreement. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section
316(a)(1)(B) of the TIA is hereby expressly excluded from this Trust Agreement
and the Securities, as permitted by the TIA.
Section 2.7. Notice of Trust Enforcement Event.
If a Trust Enforcement Event occurs and is continuing with respect to the
Securities and if it is known to a Responsible Officer of the Property Trustee,
the Property Trustee shall mail to each Holder of Securities notice of a Trust
Enforcement Event within 90 days after it occurs or, if later, after a
Responsible Officer of the Property Trustee has knowledge of such Trust
Enforcement Event. Except in the case of a Trust Enforcement Event caused by a
default in payment of principal of or interest on any Debentures, the Property
Trustee may withhold the notice if and so long as its corporate trust committee
or a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Holders of Securities.
ARTICLE 3
ORGANIZATION
Section 3.1. Name and Organization. The Trust hereby continued is named
"Omnicom Capital Trust __" as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Securities,
the Property Trustee and the Delaware Trustee. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
Section 3.2. Office. The address of the principal office of the Trust is
c/o Omnicom Group Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. On 10
Business Days' written notice to the Holders of Securities, the Property Trustee
and the Delaware Trustee, the Administrative Trustees may designate another
principal office.
Section 3.3. Purpose. The exclusive purposes and functions of the Trust
are (a) to issue and sell Securities and use the gross proceeds from such sale
to acquire the Debentures, (b) making Distributions to Holders of Securities as
herein provided and (c) except as otherwise limited herein, to engage in only
those other activities necessary, advisable or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified as a
grantor trust for United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or Common Securities or the Beneficial
Owners will take any position for United States federal income tax purposes
which is contrary to the classification of the Trust as a grantor trust.
Section 3.4. Authority. Subject to the limitations provided in this Trust
Agreement and to the specific duties of the Property Trustee, the Administrative
Trustees shall have exclusive authority to carry out the purposes of the Trust.
An action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust, and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Trust Agreement.
(a) Except as expressly set forth in this Trust Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6(b).
(c) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
Section 3.5. Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Property Account or as
otherwise provided in this Trust Agreement, legal title to all assets of the
Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
Section 3.6. Powers and Duties of the Administrative Trustees. The
Administrative Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) issue and sell the Preferred Securities and the Common Securities in
accordance with this Trust Agreement; provided, however, that the Trust may
issue no more than one series of Preferred Securities and no more than one
series of Common Securities; and provided, further, that there shall be no
interests in the Trust other than the Securities and, except as provided in
Section 7.18, the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary, in order
to qualify or register all or part of the Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Preferred
Securities for sale; and
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the TIA, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Preferred Securities and Holders of Common Securities as to such actions and
applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of this Trust Agreement and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to
conduct only those services that the Administrative Trustees have authority to
conduct directly, and to pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
TIA;
(j) to give the certificate required by Section 314(a)(4) of the TIA to
the Property Trustee, which certificate may be executed by any Administrative
Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another person to act as, registrar and transfer
agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that the
Administrative Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the 1940 Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Administrative Trustees, on behalf of the
Trust; and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Administrative Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Sponsor.
Section 3.7. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the Property
Trustee) shall cause the Trust to, engage in any activity other than as required
or authorized by this Trust Agreement. In particular, the Trust shall not and
none of the Trustees (including the Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Trust Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans other than loans represented by the Debentures
or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets;
(vi) possess any power or otherwise act in such a way as to vary the
terms of the Securities in any way whatsoever (except to the extent
expressly authorized in this Trust Agreement or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Trust Agreement or by the
terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Indenture Trustee with
respect to the Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right
to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion
of counsel to the effect that such amendment or modification will not
cause more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the 1940 Act, or the
Trust will not be classified as a grantor trust for United States federal
income tax purposes;
(ix) take any action inconsistent with the status of the Trust as a
grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by vote of
the Holders of the Preferred Securities except pursuant to a subsequent
vote of the Holders of the Preferred Securities.
Section 3.8. Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee for the benefit of the Trust and the Holders
of the Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Administrative Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the Securities
and, upon the receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds into the
Property Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the Property Account
in accordance with Section 7.2. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this Trust Agreement.
The Property Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a
"nationally recognized statistical rating organization," within the
meaning of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed and as shall be
necessary or appropriate to effect the distribution of the Debentures to
Holders of Securities upon the occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement and the Securities.
(e) Subject to Section 3.9(b), the Property Trustee may take any Legal
Action which arises out of or in connection with a Trust Enforcement Event or
the Property Trustee's duties and obligations under this Trust Agreement or the
TIA; provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest, principal or other required payments on the Debentures on the
date such interest, principal or other required payments are otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of (including
premium, if any) or interest (including any Additional Interest, as defined in
the Indenture) on Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the Debentures.
Notwithstanding anything to the contrary in this Trust Agreement or the
Indenture, the Debenture Issuer shall have the right to set-off any payment it
is otherwise required to make under the Indenture in respect of any Preferred
Security to the extent the Debenture Issuer has heretofore made, or is currently
on the date of such payment making, a payment under the Guarantee relating to
such Preferred Security or under Section 7.3 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject
to the rights of the Holders pursuant to this Trust Agreement and the terms of
the Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the TIA. Any Paying Agent may
be removed by the Property Trustee at any time and a successor Paying Agent or
additional Paying Agents may be appointed at any time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
Section 3.9. Duties and Responsibilities of the Property Trustee.
(a) If a Trust Enforcement Event has occurred and is continuing, the
Property Trustee shall exercise the rights and powers vested in it by this Trust
Agreement and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of any Trust Enforcement Event:
(i) the Property Trustee need perform only those duties that are
specifically set forth in this Trust Agreement and no others; and
(ii) in the absence of bad faith on its part, the Property Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers' Certificates
or opinions of counsel furnished to the Property Trustee and conforming to
the requirements of this Trust Agreement; however, in the case of any such
Officer's Certificates or opinions of counsel which by any provision
hereof are specifically required to be furnished to the Property Trustee,
the Property Trustee shall examine such Officers' Certificates and
opinions of counsel to determine whether or not they conform to the
requirements of this Trust Agreement.
(c) The Property Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved
that the Property Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it with respect to the Securities
in good faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement.
(d) Every provision of this Trust Agreement that in any way relates to the
Property Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Property Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Property Trustee shall not be liable for interest on any money
received by it except as the Property Trustee may agree in writing with the
Sponsor. Money held in trust by the Property Trustee need not be segregated from
other funds except in relation to the Property Account maintained pursuant to
Section 3.8(c)(i) and except to the extent required by law.
(g) No provision of this Trust Agreement shall require the Property
Trustee to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk is not reasonably assured to it.
(h) The Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the Property
Account shall be to deal with such property in a similar manner as the Property
Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Trust Agreement and the TIA.
(i) The Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the Debentures or
the payment of any taxes or assessments levied thereon or in connection
therewith.
(j) The Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Sponsor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
any default or misconduct of the Administrative Trustees or the Sponsor.
Section 3.10. Rights of Property Trustee.
(a) The Property Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper person. The Property Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Property Trustee acts or refrains from acting, it may
require an Officers' Certificate or an opinion of counsel. The Property Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or opinion of counsel.
(c) The Property Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care. No Depositary shall be deemed an agent of the Property Trustee and the
Property Trustee shall not be responsible for any act or omission by any
Depositary.
(d) The Property Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Property Trustee may consult with counsel and the advice of such
counsel or any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(f) The Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders of Securities unless such Holders shall have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction, including such reasonable advances as may be
requested by the Property Trustee; provided, that nothing contained in this
Section 3.10(f) shall be taken to relieve the Property Trustee, upon the
occurrence of a Trust Enforcement Event, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement in the manner provided by
Section 3.9(a).
(g) Whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would been entitled to direct the
Property Trustee under the terms of the Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or accordance with such
instructions.
(h) Except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
(i) When the Property Trustee incurs expenses or renders services in
connection with a bankruptcy, the expenses and the compensation for the services
are intended to constitute expenses of administration under any bankruptcy law
or law for the relief of debtors generally.
(j) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 3.11. Delaware Trustee. Notwithstanding any other provision of
this Trust Agreement other than Section 6.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Administrative Trustees or the Property
Trustee described in this Trust Agreement. Except as set forth in Section 6.2,
the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807(a) of the Business Trust Act. In the
event the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder with respect to the Trust, the Delaware Trustee shall
be entitled to all of the same rights as the Property Trustee listed in Sections
3.9(b)-(h) and Section 3.10. No implied covenants or obligations shall be read
into this Trust Agreement against the Delaware Trustee. It is expressly
understood and agreed by the parties hereto that in fulfilling its obligations
as Delaware Trustee hereunder on behalf of the Trust (i) any agreements or
instruments executed and delivered by Chase Manhattan Bank USA, National
Association are executed and delivered not in its individual capacity but solely
as Delaware Trustee under this Trust Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by Chase Manhattan Bank USA, National Association in its individual
capacity but is made and intended for the purpose of binding only the Trust, and
(iii) under no circumstances shall Chase Manhattan Bank USA, National
Association in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trust under this Trust Agreement, except if such breach or failure is due to
any gross negligence or willful misconduct of the Delaware Trustee.
Section 3.12. Execution of Documents. Unless otherwise determined by the
Administrative Trustees, and except as otherwise required by the Business Trust
Act or applicable law, any Administrative Trustee is authorized to execute on
behalf of the
Trust any documents that the Administrative Trustees have the power and
authority to execute pursuant to Section 3.6.
Section 3.13. Trustees' Disclaimer. The Trustees make no representation
as to the validity or adequacy of this Trust Agreement, the Securities, the
Indenture or the Debentures; they shall not be accountable for the Debenture
Issuer's use of the proceeds from the Debentures, and they shall not be
responsible for any statement in the Debentures or the Securities, except that
the Property Trustee and the Administrative Trustees shall be responsible for
the Securities' authentication.
Section 3.14. Duration of Trust. The Trust shall exist until terminated
pursuant to the provisions of Article 8 hereof.
Section 3.15. Mergers.
(a) The Trust may not consolidate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to any person, except as described in Section 3.15(b) and (c) or
Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the consent of
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate, merge
with or into, or be replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
a. expressly assumes all of the obligations of the Trust with
respect to the Securities; or
b. substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) if the Trust is not the successor Entity, the Sponsor expressly
appoints a trustee of such Successor Entity that possesses the same powers
and duties as the Property Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other or
organization on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, replacement, conveyance, transfer
or lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of
the Holders of the Preferred Securities (including any Successor
Securities) in any material respect other than with respect to the
dilution of the Holders' interest in the new entity;
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, replacement, conveyance,
transfer or lease the Sponsor has received an opinion of independent
counsel to the Trust experienced in such matters to the effect that:
a. such merger, consolidation, 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 (including any
Successor Securities) other than with respect to the dilution of the
Holders' interest in the new entity;
b. following such merger, consolidation, replacement,
conveyance, transfer or lease, neither the Trust nor the Successor
Entity will be required to register as an Investment Company; and
c. following such merger, consolidation or replacement, the
Trust (or the Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all
of the common securities and guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Guarantee; and
(ix) such Successor Entity expressly assumes all of the obligations
of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate liquidation amount of the Securities,
consolidate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to, any other entity or
permit any other entity to consolidate, merge with or into, or replace it, if
such consolidation, merger, replacement, conveyance, transfer or lease would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes
and each Holder of the Securities not to be treated as owning an undivided
interest in the Debentures.
Section 3.16. Property Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Trust or any other obligor upon the Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions on the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
Section 4.1. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare, execute and file on behalf of by the Trust an application
to the New York Stock Exchange or any other national stock exchange or the
NASDAQ
Stock Market for listing upon notice of issuance of any Preferred Securities,
the Guarantee and the Debentures;
(b) to prepare, execute and file on behalf of by the Trust with the
Commission under the Securities Act or the Exchange Act one or more registration
statements on the applicable forms, including any amendments thereto, pertaining
to the Preferred Securities, the Guarantee and the Debentures;
(c) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States; and
(d) to negotiate the terms of and to execute on behalf of the Trust an
underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
Section 4.2. Compensation and Indemnification. Pursuant to the Agreement
as to Expenses and Liabilities, the Sponsor shall pay to each of the Property
Trustee and the Delaware Trustee from time to time reasonable compensation for
their services. Such Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Sponsor shall reimburse each
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1. Debenture Issuer's Purchase of Common Securities. On the
applicable Closing Date, the Debenture Issuer will purchase all of the Common
Securities issued by the Trust on such Closing Date, for an amount at least
equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold; provided that, if the Option set forth in Section
7.18(a) is exercised, then the Debenture Issuer will purchase such additional
Common Securities from the Trust on such second Closing Date such that it will
then hold at least 3% of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities outstanding
at any time shall not be less than 3% of the capital of the Trust.
Section 5.2. Covenants of the Common Securities Holder. For so long as
the Preferred Securities remain outstanding, the Common Securities Holder will
covenant (i) to maintain, directly or indirectly, 100% ownership of the Common
Securities, (ii) to cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this
Trust Agreement, (iii) to use its commercially reasonable efforts to ensure that
the Trust will not be an investment company for purposes of the 1940 Act, and
(iv) to take no action which would be reasonably likely to cause the Trust to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.
ARTICLE 6
TRUSTEES
Section 6.1. Number of Trustees. The number of Trustees initially shall
be seven, and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided, further, that
(i) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (ii) at least one
Administrative Trustee is an employee or officer of, or is affiliated with, the
Sponsor; and (iii) one Trustee shall be the Property Trustee for so long as this
Trust Agreement is required to qualify as an indenture under the TIA, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
Section 6.2. Delaware Trustee; Eligibility. If required by the Business
Trust Act, one Trustee (which may be the Property Trustee) (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law; provided that, if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
Section 6.3. Property Trustee; Eligibility; Disqualification.
This Trust Agreement shall always have a Property Trustee who satisfies
the requirements of Sections 310(a)(1), (2) and (5) of the TIA. The Property
Trustee shall always have a combined capital and surplus of at least $25,000,000
as set forth in its
most recent published annual report of condition. The Property Trustee shall
comply with Section 310(b) of the TIA.
Section 6.4. Qualifications of Administrative Trustees and Delaware
Trustee Generally. Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
Section 6.5. Initial Administrative Trustees. The initial Administrative
Trustees shall be: Xxxx Xxxx, Xxxxxxx Xxxxxxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxxx and Xxxxx X. Xxxxxx, the business address of all of whom is c/o
Omnicom Group Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 6.6. Replacement of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, by vote of the Holders of a
Majority in Liquidation Amount of the Preferred Securities; provided,
however, that the Administrative Trustees may still be appointed or
removed without cause in such circumstance, by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities.
(b) A Trustee may resign with respect to the Securities by so notifying
the Sponsor and the Trust. A resignation or removal of the Property Trustee or
Delaware Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section or, in the case of the resignation of the Property Trustee, if the
assets of the Trust have been completely liquidated and the proceeds distributed
to the Holders of the Securities. The resignation of an Administrative Trustee
is effective upon delivery of notice to the Sponsor and the Trust.
(c) The Holders of the Common Securities may remove the Property Trustee
or Delaware Trustee if:
(i) the Trustee fails to comply with Section 6.3, in the case of the
Property Trustee, or Section 6.2 in the case of the Delaware Trustee;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(iii) a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(d) If a Trustee resigns or is removed or if a vacancy exists in the
office of a Trustee for any reason, the Holders of the Common Stock shall
promptly appoint a successor Trustee.
(e) If a successor Property Trustee or Delaware Trustee does not take
office within 60 days after the retiring Property Trustee or Delaware Trustee,
as the case may be, resigns or is removed, the retiring Trustee, the Sponsor or
the Holders of at least 10% in Liquidation Amount of the Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) If the Property Trustee fails to comply with Section 6.3, any Holder
of Securities may petition any court of competent jurisdiction for the removal
of the Property Trustee and the appointment of a successor Property Trustee.
(g) A successor Property Trustee shall deliver a written acceptance of its
appointment to the retiring Property Trustee and to the Trust and Sponsor.
Immediately after that, the retiring Property Trustee shall transfer all
property held by it as Property Trustee to the successor Property Trustee, the
resignation or removal of the retiring Property Trustee shall become effective,
and the successor Property Trustee shall have all the rights, powers and duties
of the Property Trustee. A successor Property Trustee shall mail a notice of its
succession to each Holder. Notwithstanding replacement of the Property Trustee
pursuant to this Section 6.6, the Sponsor's obligations under Section 4.2 hereof
shall continue for the benefit of the retiring Property Trustee with respect to
expenses and liabilities incurred by it prior to such replacement.
(h) A successor Delaware Trustee shall deliver a written acceptance of its
appointment to the retiring Delaware Trustee and to the Trust and Sponsor.
Immediately after that, the resignation or removal of the retiring Delaware
Trustee shall become effective, and the successor Delaware Trustee shall have
all the rights, powers and duties of the Delaware Trustee. A successor Delaware
Trustee shall mail a notice of its succession to each Holder.
Section 6.7. Vacancies among Trustees. If a Trustee ceases to hold office
for any reason and the number of Trustees is not reduced pursuant to Section
6.1, or if the number of Trustees is increased pursuant to Section 6.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
Section 6.8. Effect of Vacancies. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 6.6, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 6.9. Meetings. If there is more than one Administrative Trustee,
meetings of the Administrative Trustees may be held from time to time upon the
call of any Administrative Trustee. Regular meetings of the Administrative
Trustees may be held at a time and place fixed by resolution of the
Administrative Trustees. Notice of any in-person meetings of the Administrative
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Administrative Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile) not less than 24 hours before a
meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Trust Agreement, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter; provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
Section 6.10. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
Section 6.11. Successor Trustee by Merger, Etc. If a Property Trustee or
Delaware Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Property
Trustee or Delaware Trustee; provided the successor corporation complies with
the TIA provisions of Section 6.3 or Section 6.4, respectively.
ARTICLE 7
TERMS OF SECURITIES
Section 7.1. General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of the Trust have
an aggregate liquidation amount with respect to the assets of the Trust of
_______________ dollars ($_________) with respect to the initial closing
of the sale of Preferred Securities [and, if the Option set forth in
Section 7.18(a) is exercised, an additional aggregate liquidation amount
with respect to the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the sale of Preferred
Securities; provided that the maximum aggregate liquidation amount of
Preferred Securities of the Trust shall not exceed ____________ dollars
($_________).] The Preferred Securities are hereby designated for
identification purposes only as "_____% Preferred Securities" (the
"Preferred Securities"). The Preferred Securities shall be in
substantially the form set forth in Exhibit A to this Trust Agreement, or
in such other form as shall be established by the Administrative Trustees,
in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Trust Agreement,
and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistent herewith,
be determined by the Administrative Trustees executing such Preferred
Securities, as evidenced by their execution of the Preferred Securities.
The definitive Preferred Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the Administrative Trustees executing such Preferred
Securities, as evidenced by their execution of such Preferred Securities.
(ii) Common Securities. The Common Securities of the Trust shall
have an aggregate liquidation amount with respect to the assets of the
Trust of ____________ dollars ($_______________) with respect to the
initial closing of the sale of Common Securities [and, if the Option set
forth in Section 7.18(a) is
exercised, an additional aggregate liquidation amount with respect to the
assets of the Trust of __________ dollars ($__________)] with respect to
the second closing of the sale of Common Securities; provided that the
maximum aggregate liquidation amount of common securities issued by the
Trust shall not exceed __________ dollars ($___________). The Common
Securities are hereby designated for identification purposes only as
"____% Common Securities" (the "Common Securities" and, together with the
Preferred Securities, the "Securities"). The Common Securities shall be in
substantially the form set forth in Exhibit B to this Trust Agreement, or
in such other form as shall be established by the Administrative Trustees,
in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Trust Agreement,
and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistent herewith,
be determined by the Administrative Trustees executing such Common
Securities, as evidenced by their execution of the Common Securities.
The definitive Common Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the Administrative Trustees executing such Common Securities,
as evidenced by their execution of such Common Securities.
(b) Payment of Distributions on, and payment of the Redemption Price upon
a redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) An Administrative Trustee shall sign the Securities for the Trust by
manual or facsimile signature.
If an Administrative Trustee whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Property Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this Trust
Agreement.
The Property Trustee shall at any time, and from time to time,
authenticate Securities for original issue in an amount not to exceed the
liquidation amounts set forth in Section 7.1(a), upon receipt by the Property
Trustee of a written order of the Trust signed by an Administrative Trustee (a
"Trust Order"). Such Trust Order may authorize authentication and delivery
pursuant to oral or electronic instructions from an Administrative Trustee,
which oral instructions shall be promptly confirmed in writing. Each Security
shall be dated the date of its authentication unless otherwise provided by a
Trust Order.
The aggregate number of Securities outstanding at any time may not exceed
the liquidation amounts set forth in Section 7.1(a), except as provided in
Section 7.10.
The Property Trustee shall have the right to decline to authenticate and
deliver any Securities: (a) if the Property Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Property
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Property Trustee to personal liability to Holders
of any Securities.
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Property Trustee may do so. Each reference in this Trust
Agreement to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as any registrar, paying
agent or service agent to deal with the Trust.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Except to the extent set forth in Section 9.1(b), upon issuance of the
Securities as provided in this Trust Agreement, the Securities so issued shall
be deemed to be validly issued, fully paid and non-assessable undivided
beneficial ownership interests in the assets of the Trust.
(f) Every person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement and the terms of the Securities, the
Guarantee, the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or similar
rights.
Section 7.2. Distributions.
(a) Holders of Securities shall be entitled to receive cumulative cash
Distributions at the rate per annum of __% of the stated liquidation amount of
$__ per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full [quarterly]
[semi-annual] distribution period shall be computed on the basis of a 30-day
month and for periods of less than a month, the actual number of days elapsed
per 30-day month. Subject to Section 7.1(b), Distributions shall be made on the
Preferred Securities and the Common Securities on a Pro Rata basis.
Distributions on the Securities shall, from the date of original issue, accrue
and be cumulative and shall be payable [quarterly][semi-annually], in arrears,
on each __________ [, __________, _________] and _________, commencing_________
__, ____, when, as and if available for payment, by the Property Trustee, except
as otherwise described below. Distributions are payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will accumulate
and compound [quarterly][semi-annually] at the rate of __% per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Debentures. The relevant record dates
for the Common Securities shall be the same as for the Preferred Securities. If
the Preferred Securities shall not continue to remain represented by one or more
Global Securities, the relevant record dates for the Preferred Securities shall
be selected by the Administrative Trustees and shall be at least 15 days prior
to the relevant payment dates. At all times, the Distribution payment dates
shall correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the person in whose name such
Securities are registered on the special record date or other specified date
determined with respect to the related interest payment date pursuant to the
Indenture.
If any date on which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the next
preceding day which is a Business Day, with the same force and effect as if made
on such payment date.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
Section 7.3. Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Debentures and the Indenture,
including pursuant to a Special Event, the proceeds from such repayment or
redemption shall be simultaneously applied Pro Rata (subject to Section 7.1(b))
to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at the
Redemption Price. Holders shall be given not less than 30 nor more than 60 days
notice of such redemption in accordance with Section 7.4.
(b) Certificates called for redemption in whole must be surrendered to the
Paying Agent in order to receive payment of the Redemption Price. Upon surrender
of a Security that is redeemed in part, the Property Trustee shall authenticate
for the Holder a new Security equal in liquidation amount to the unredeemed
portion of the Security surrendered.
Section 7.4. Redemption Procedures.
(a) At least 30 days but not more than 60 days before a redemption date,
the Trust shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) that Distributions on Securities called for redemption cease to
accrue on and after the redemption date; and
(vi) any other information as may be required by the terms of the
Securities being redeemed.
At the Trust's request, the Property Trustee shall give the notice of
redemption in the Trust's name and at its expense.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed Pro Rata
(subject to Section 7.1(b)) and will be redeemed as described in Section 7.4(c)
below. The Trust may not redeem the Securities in part unless all accumulated
and unpaid Distributions to the date of redemption have been paid in full on all
Securities then outstanding. For all purposes of this Trust Agreement, unless
the context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Security
redeemed or to be redeemed only in part, to the portion of the aggregate
liquidation amount of Preferred Securities which has been or is to be redeemed.
(c) Once notice of redemption is mailed as provided in Section 7.4(a),
Securities called for redemption become due and payable on the redemption date
and at the redemption price. A notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued Distributions to the redemption date.
(d) On or before the redemption date; provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of immediately available funds
in connection with the related redemption of the Debentures, the Property
Trustee shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accumulated and unpaid Distributions, if any, on all
Securities to be redeemed on that date.
(e) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
Section 7.5. Voting Rights of Preferred Securities.
(a) Except as provided under Sections 6.6, 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the TIA and other applicable law,
the Holders of the Preferred Securities shall have no voting rights.
(b) Subject to the requirement of the Property Trustee to obtain a tax
opinion in certain circumstances as set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred on the Property Trustee under the Trust Agreement, including the
right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures; (ii) consent to any amendment or modification of the Indenture
or the Debentures where such consent shall be required or (iii) waive any past
default and its consequences that is waivable under Section 7.13 of the
Indenture; provided, however, that if an Indenture Event of Default has occurred
and is continuing, then the Holders of ___% of the aggregate liquidation amount
of the Preferred Securities may direct the Property Trustee to declare the
principal of and accrued and unpaid interest, if any, on the Debentures due and
payable immediately; provided, further, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby, only
the Holders of the percentage of the aggregate stated liquidation amount of the
Preferred Securities which is at least equal to the percentage required under
the Indenture may direct the Property Trustee to give such consent to take such
action; provided, further, that (subject to the provisions of Section 3.9) the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee shall (x) determine that the direction conflicts with any
rule of law, the Trust Agreement or the Indenture; (y) determine that the
Property Trustee may take any other action deemed proper by the Property Trustee
which is not inconsistent with such direction; and (z) in good faith, by a
Responsible Officer of the Property Trustee, determine that the proceeding so
directed would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) Subject to Section 2.7, the Property Trustee shall notify all Holders
of the Preferred Securities of any notice of any Indenture Event of Default
received from the Debenture Issuer with respect to the Debentures. Such notices
shall state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and place
of conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 7.5(b)(i) and (ii)
above unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes as a result of such action,
and each Holder will be treated as owning an undivided beneficial ownership
interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by not
less than a majority in
liquidation amount of the Securities voting together as a single class;
provided, however, that where a consent under the Indenture would require the
consent of the Holders of more than a majority of the aggregate principal amount
of the Debentures, the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has obtained an opinion of independent tax counsel
to the effect that the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes as a result of such action,
and each Holder will be treated as owning an undivided beneficial ownership
interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities or pursuant
to written consent. The Administrative Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of Preferred Securities shall be
required for the Trust to redeem and cancel Preferred Securities or distribute
Debentures in accordance with this Trust Agreement and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Securities that are owned at such time by the Debenture Issuer, any
Administrative Trustee or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Debenture Issuer or any
Administrative Trustee, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Securities were not
outstanding; provided, however, that persons otherwise eligible to vote to whom
the Debenture Issuer or any of its subsidiaries have pledged Preferred
Securities may vote or consent with respect to such pledged Preferred Securities
under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holders.
(k) Subject to the rights of the Holders of a Majority in Liquidation
Amount of the Common Securities to appoint or remove Administrative Trustees as
provided in Section 6.6(a)(iii), if an Indenture Event of Default has occurred
and is
continuing, the Trustees may be removed at such time only by a Majority in
Liquidation Amount of the Preferred Securities.
Section 7.6. Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or Section
11.1 or as otherwise required by the Business Trust Act, the TIA or other
applicable law, the Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article 6 of this Trust
Agreement, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events
with respect to the Preferred Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee to obtain a
tax opinion in certain circumstances as set forth in this paragraph (c), the
Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred on the Property Trustee under this Trust Agreement, including the
right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures, (ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent shall be required or (iii) waive any past
default and its consequences that is waivable under Section 7.13 of the
Indenture; provided, however, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action; provided, further, that (subject to the provisions of Section 3.9) the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee shall (x) determine that the direction conflicts with any
rule of law, the Trust Agreement or the Indenture; (y) determine that the
Property Trustee may take any other action deemed proper by the Property Trustee
which is not inconsistent with such direction; and (z) in good faith, by a
Responsible Officer of the Property Trustee, determine that the proceeding so
directed would involve the Property Trustee in personal liability. Except with
respect to directing the time, method, and place of conducting a proceeding for
a remedy, the Property Trustee shall be under no obligation to take any of the
actions described in clause 7.6(c)(i) and (ii) above unless the Property Trustee
has obtained an opinion of independent tax counsel to the effect that the Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and each Holder will be treated
as owning an undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common Securities
maybe given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities or pursuant to
written consent. The Administrative Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debentures in accordance with the Trust Agreement and the terms of the
Securities.
Section 7.7. Registrar and Paying Agent. The Trust shall cause a Paying
Agent to maintain an office or agency where the Securities may be presented or
surrendered for payment, maintain an office or agency where Securities may be
surrendered for registration of transfer or exchange ("Registrar") and where
notices and demands to or upon the Trust in respect of the Securities and this
Trust Agreement may be served ("Service Agent"). The Registrar shall keep a
register with respect to the Securities and to their transfer and exchange. The
Trust will give prompt written notice to the Property Trustee of the name and
address, and any change in the name or address, of each Registrar, Paying Agent
or Service Agent. If at any time the Trust shall fail to maintain any such
required Registrar, Paying Agent or Service Agent or shall fail to furnish the
Property Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Property Trustee, and the Trust hereby appoints the Property
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Trust may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Trust of its obligations to maintain
a Registrar, Paying Agent and Service Agent for such purposes. The Trust will
give prompt written notice to the Property Trustee of any such designation or
rescission and of any change in the name or address of any such co-registrar,
additional paying agent or additional service agent. The term "Registrar"
includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Trust hereby appoints the Property Trustee the initial Registrar,
Paying Agent and Service Agent for the Securities.
Section 7.8. Listing. The Sponsor shall use its best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock Exchange.
Section 7.9. Transfer and Exchange of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Trust Agreement and in the terms
of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Trust
Agreement shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be freely
transferable.
(ii) Holders of the Common Securities may not transfer the Common
Securities except (A) in compliance with a consolidation, merger, sale,
conveyance or lease of the Sponsor in compliance with Article VI of the
Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with
applicable law, including the Securities Act and applicable state
securities and blue sky laws. To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be null and void.
(c) Where Securities are presented to the Registrar or a co-registrar with
a request to register a transfer or to exchange them for an equal liquidation
amount of Securities, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Property Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Trust may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Section 7.4).
Neither the Trust nor the Registrar shall be required (i) to issue,
register the transfer of, or exchange Securities for the period beginning at the
opening of business fifteen days immediately preceding the mailing of a notice
of redemption of Securities and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange Securities
selected, called or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called or being called for redemption
in part.
Section 7.10. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Property Trustee, the Administrative
Trustees shall execute and the Property Trustee shall authenticate and deliver
in exchange therefor a new Security of like tenor and liquidation amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Administrative Trustees and the
Property Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Administrative Trustees or the Property Trustee that
such Security has been acquired by a bona fide purchaser, the Administrative
Trustees shall execute and upon its request the Property Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and liquidation amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Trust in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Trust may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Property Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Trust, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Trust Agreement equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 7.11. Outstanding Securities. The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the
provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 7.10, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Sponsor, a subsidiary or an Affiliate
of any thereof) holds on a redemption date of Securities money sufficient to pay
such
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and Distributions on them ceases to accrue.
A Security does not cease to be outstanding because the Sponsor or an
Affiliate holds the Security.
Section 7.12. Treasury Securities. In determining whether the Holders of
the required liquidation amount of Preferred Securities have concurred in any
request, demand, authorization, direction, notice, consent or waiver, Preferred
Securities owned by the Sponsor or an Affiliate shall be disregarded, except
that for the purposes of determining whether the Property Trustee shall be
protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Preferred Securities that the Property Trustee
knows are so owned shall be so disregarded.
Section 7.13. Temporary Securities. Until definitive Securities are ready
for delivery, the Administrative Trustees may prepare and the Property Trustee
shall authenticate temporary Securities upon a Trust Order. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Administrative Trustees considers appropriate for temporary
Securities. Without unreasonable delay, the Administrative Trustees shall
prepare and the Property Trustee upon request shall authenticate definitive
Securities in exchange for temporary Securities. Until so exchanged, temporary
securities shall have the same rights under this Trust Agreement as the
definitive Securities.
Section 7.14. Cancellation. The Trust at any time may deliver Securities
to the Property Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Property Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Property Trustee shall cancel
all Securities surrendered for transfer, exchange, payment, replacement or
cancellation and shall destroy such canceled Securities (subject to the record
retention requirement of the Exchange Act) and deliver a certificate of such
destruction to the Trust, unless the Trust otherwise directs. The Trust may not
issue new Securities to replace Securities that it has paid or delivered to the
Property Trustee for cancellation.
Section 7.15. Deemed Security Holders. The Trustees may treat the person
in whose name any Certificate shall be registered on the register of the Trust
as the sole Holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions subject to Section 7.2(d)
and for all other purposes whatsoever and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
Section 7.16. Global Securities.
Section 7.16.1 Terms of Securities. A Trust Order shall establish whether
the Preferred Securities shall be issued in whole or in part in the form of one
or more Global Securities and the Depositary for such Global Security or
Securities.
Section 7.16.2 Transfer and Exchange. Notwithstanding any provisions to
the contrary contained in Section 7.9 and in addition thereto, any Global
Security shall be exchangeable pursuant to Section 7.9 for Preferred Securities
registered in the names of Holders other than the Depositary for such Preferred
Security or its nominee only if (i) such Depositary notifies the Trust that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Trust fails to appoint a successor
Depositary within 90 days of such event, (ii) the Trust executes and delivers to
the Property Trustee an Officers' Certificate to the effect that such Global
Security shall be so exchangeable or (iii) a Trust Enforcement Event with
respect to the Preferred Securities represented by such Global Security shall
have happened and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Preferred
Securities registered in such names as the Depositary shall direct in writing in
an aggregate liquidation amount equal to the liquidation amount of the Global
Security with like tenor and terms.
Except as provided in this Section 7.16.2, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global
Security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
Section 7.16.3 Legend. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Security is exchangeable for
Preferred Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement, and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such a successor Depositary."
Unless this Preferred Security Certificate is presented by an authorized
representative of the Depositary to Omnicom Capital Trust __ or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the
registered owner hereof, Cede & Co., has an interest herein."
Section 7.16.4 Cancellation; Issuance of Registered Securities. At such
time as all interests in Global Securities have been redeemed, repurchased or
cancelled,
such Global Securities shall be, upon receipt thereof, cancelled by the Property
Trustee in accordance with standing procedures of the Depositary. At any time
prior to such cancellation, if any interest in Global Securities is exchanged
for Preferred Securities not represented by a Global Security, redeemed,
cancelled or transferred to a transferee who receives Preferred Securities not
represented by a Global Security therefor or any Preferred Security not
represented by a Global Security is exchanged or transferred for part of Global
Securities, the principal amount of such Global Securities shall, in accordance
with the standing procedures of the Depositary, be reduced or increased, as the
case may be, and an endorsement shall be made on such Global Securities by the
Property Trustee to reflect such reduction or increase.
The Trust may at any time and in its sole discretion determine that the
Preferred Securities issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Preferred Securities. In such
event the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Preferred Securities representing such Preferred
Securities, in exchange for such Global Security or Preferred Securities.
Section 7.16.5 Acts of Holders. The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Trust Agreement.
Section 7.16.6 Payments. Notwithstanding the other provisions of this
Trust Agreement, payment of the liquidation amount on any Global Security shall
be made to the Holder thereof.
Section 7.16.7 Consents, Declaration and Directions. Except as provided
in Section 7.16.6, the Trust, the Property Trustee and any Agent shall treat a
person as the Holder of such liquidation amount of outstanding Preferred
Securities represented by a Global Security as shall be specified in a written
statement of the Depositary with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Trust Agreement.
Section 7.17. CUSIP Numbers. The Trust in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
SECTION 7.18. Over-Allotment Option.
(a) The Administrative Trustees, on behalf of the Trust, and the Sponsor
may grant to the underwriters or initial purchasers who are underwriting or
purchasing, as the case may be, any series of Preferred Securities, an option
(the "Option") to purchase an additional liquidation amount of such series of
Preferred Securities on the terms and conditions specified in the underwriting
agreement or purchase agreement, as the case may be, relating to such Preferred
Securities; provided, however, the Option may only be granted if the following
conditions are satisfied:
(i) the Option, if exercised, may not result in the issue and sale
of an aggregate liquidation amount of Preferred Securities greater than
that registered by the Sponsor and the Trust on the applicable
registration statement or registration statements (including by a
registration statement filed under Rule 462(b) under the Securities Act,
if any), as the case may be, with the Commission under the Securities Act;
(ii) the Option must result, if exercised, in the issuance and sale
of Preferred Securities to such underwriters or initial purchasers, as the
case may be, and the issuance and sale of Common Securities to the Sponsor
on a Pro Rata basis and not in contravention of any other provision of
this Agreement or the Business Trust Act, consistent with Section 5.1; and
(iii) the Preferred Securities and the Common Securities issued and
sold subject to the exercise of the Option, if any, must be of the same
series and must bear the same CUSIP numbers as the series of Preferred
Securities and the Common Securities, respectively, which were initially
issued and sold by the Trust and the Sponsor, respectively.
(b) With respect to any issuance of Preferred Securities and Common
Securities following the exercise of the Option,
(i) the designation the "__% Preferred Securities" and, for all
purposes under this Trust Agreement, the defined terms the "Preferred
Securities" shall mean both the Preferred Securities issued initially
hereunder and any Preferred Securities issued pursuant to the exercise of
the Option; and
(ii) the designation the "__% Common Securities" and, for all
purposes under this Trust Agreement, the defined term the "Common
Securities" shall mean both the Common Securities issued initially
hereunder and any Common Securities issued pursuant to the requirement of
Section 7.18(a)(ii) regarding the additional issuance of Common Securities
on a Pro Rata basis if the Option is exercised.
(c) If the Option set forth in Section 7.18(a) is exercised on a date
other than the initial Closing Date, then the parties to the Trust Agreement
shall cause there to occur a second closing for the consummation of the sale of
the Preferred
Securities and Common Securities under substantially the same conditions that
applied to the initial closing of the sale of such securities, including the
following:
(i) the execution and delivery of a second Preferred Security
Certificate, or such additional Preferred Security Certificates, as
appropriate, which is, or are, as the case may be, substantially identical
in all respects to the Preferred Security Certificate issued initially;
and
(ii) the execution and delivery of a second Common Security
Certificate, or such additional Common Security Certificate, as
appropriate, which is, or are, as the case may be, substantially identical
in all relevant respects to the Common Security Certificate issued
initially.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1. Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the Bankruptcy Event of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor; after obtaining the consent of the Holders of
at least a Majority in Liquidation Amount of the Securities to dissolve
the Trust; or the revocation of the Sponsor's charter and the expiration
of 90 days after the date of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the Sponsor
or the Trust;
(iv) the time when all of the Securities shall have been called for
redemption and the amounts then due shall have been paid to the Holders in
accordance with the terms of the Securities;
(v) at the Sponsor's election by notice and direction to the
Property Trustee to distribute the Debentures to the Holders of the
Securities in exchange for all of the Securities; provided that the
Sponsor will be required to obtain an opinion of an independent counsel
that the distribution of the Debentures will not be taxable to the Holders
of the Preferred Securities for United States federal income tax purposes;
or
(vi) the time when all of the Administrative Trustees and the
Sponsor shall have consented to dissolution of the Trust; provided such
action is taken before the issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a) and upon completion of the winding up and liquidation of the
Trust, the Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
Section 8.2. Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation, dissolution,
or winding-up of the Trust (each a "Liquidation"), the Holders of the Securities
on the date of the Liquidation will be entitled to receive, out of the assets of
the Trust available for distribution to Holders of Securities after satisfaction
of the Trusts' liabilities to creditors, if any, distributions in cash or other
immediately available funds in an amount equal to the aggregate of the stated
liquidation amount of $__ per Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accumulated and unpaid Distributions on,
such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Preferred Securities except that if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a preference over the Common Securities with regard to
such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
Section 9.1. Liability.
(a) Except as expressly set forth in this Trust Agreement, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Section 9.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that, subject to Section 3.11, an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any person as to matters the Indemnified
Person reasonably believes are within such other person's professional or expert
competence and who has if selected by such Indemnified Person, been selected by
such Indemnified Person with reasonable care on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
Section 9.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Trust Agreement shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the TIA), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Securities, the Indemnified Person shall
resolve such conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party (including
its own interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any customary or
accepted industry practices and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute a breach of this
Trust Agreement or any other agreement contemplated herein or of any duty
or obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Trust Agreement
or by applicable law.
Section 9.4. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent permitted
by law, any Debenture Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Debentures Issuer Indemnified Person against expenses
(including attorney fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Debenture Issuer
Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debentures
Issuer Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Trust, except that no such indemnification shall be made
in respect of any claim, issue or matter as to which such Debentures
Issuer Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or
such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debentures Issuer Indemnified Person is proper in
the circumstances because he has met the applicable standard of conduct
set forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a quorum consisting
of such Administrative Trustees who were not parties to such action, suit
or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Holders of the Common Securities of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Debentures
Issuer Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 9.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Debentures Issuer
Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture
Issuer as authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Administrative
Trustees by a majority vote of a quorum of disinterested Administrative
Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrative Trustees, counsel or the Common Security Holder at the time
such determination is made, such Debentures Issuer Indemnified Person
acted in bad faith or in a manner that such person did not believe to be
in or not opposed to the best interests of the Trust, or, with respect to
any criminal proceeding, that such Debentures Issuer Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 9.4(a) shall be deemed to be provided by a contract between
the Debenture Issuer and each Debentures Issuer Indemnified Person who
serves in such capacity at any time while this Section 9.4(a) is in
effect. Any repeal or modification of this Section 9.4(a) shall not affect
any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debentures Issuer
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 9.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Debentures Issuer Indemnified Person and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
obligation to indemnify as set forth in this Section 9.4(a) shall survive
the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this Trust
Agreement.
(b) The Debenture Issuer agrees to indemnify the (i) Property Trustee,
(ii) the Delaware Trustee and (iii) any officers, directors, employees,
shareholders or agents of the Property Trustee or the Delaware Trustee (each of
the Persons in (i) through (iii) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
any loss, liability or expense incurred without negligence or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.4(b) shall survive the resignation and
removal of the Delaware Trustee or the Property Trustee and the dissolution of
the Trust and the termination of this Trust Agreement. In addition, the
Debenture Issuer has agreed in the Indenture to pay the fees and expenses of the
Delaware Trustee and the Property Trustee.
Section 9.5. Outside Businesses. Subject to the provisions of Section 6.3,
any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee
may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
activities of the Trust, and the Trust and the Holders of Securities shall have
no rights by virtue of this Trust Agreement in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or
the Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1. Fiscal Year.The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
Section 10.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and delivered
to each of the Holders of Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Administrative Trustees on behalf of the Trust with any state or local
taxing authority.
Section 10.3. Banking. The Trust shall maintain one or more bank accounts
in the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Property Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Account.
Section 10.4. Withholding. The Trust and the Administrative Trustees
shall comply with all withholding requirements under United States federal,
state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Holder. In the event of any claimed over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended by
a written instrument approved and executed by the Sponsor and (i) the
Administrative Trustees (or, if there are more than two Administrative Trustees,
a majority of the Administrative Trustees), (ii) the Property Trustee; and (iii)
the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee. (b) No amendment shall be
made, and any such purported amendment shall be void and ineffective:
(i) unless, the Property Trustee shall have first received:
a. an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the
Securities) and that all conditions precedent to the execution and
delivery of such amendment have been satisfied; and
b. an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the
Securities) and that all conditions precedent to the execution and
delivery of such amendment have been satisfied; and
(ii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a grantor
trust for United States federal income tax purposes;
b. reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the TIA; or
c. cause the Trust to be deemed to be an Investment Company
required to be registered under the 1940 Act.
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution required to be made in respect of the Securities as of a
specified date or (b) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such payment on or after such
date, will entitle the Holders of such Securities, voting together as a
single class, to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of each of the
Holders of the Securities affected thereby; and
(ii) any amendment that would (a) adversely affect the powers,
preferences or special rights of the Securities, whether by way of
amendment to this Trust Agreement or otherwise or (b) result in the
dissolution, winding-up or termination of the Trust other than pursuant to
the terms of this Trust Agreement, will entitle the holders of the
Securities voting together as a single class to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with
the approval of a Majority in Liquidation Amount of the Securities
affected thereby; provided that, if any amendment or proposal referred to
in clause (a) above would adversely affect only the Preferred Securities
or the Common Securities, then only the affected class will be entitled to
vote on such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent of all of
the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article 6 to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in Liquidation Amount
of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Trust Agreement may be amended
without the consent of the Holders of the Securities, if such amendment does not
adversely affect in any material respect the rights of the holders of the
Securities, to:
(i) cure any ambiguity, defect or inconsistency;
(ii) add to the covenants, restrictions or obligations of the
Sponsor;
(iii) to conform to any change in Rule 3a-5 of the 1940 Act or
written change in interpretation or application of Rule 3a-5 of the 1940
Act by any legislative body, court, government agency or regulatory
authority; or
(iv) to modify, eliminate and add to any provision of this Trust
Agreement to ensure that the Trust will be classified as a grantor trust
for United States federal income tax purposes at all times that any
Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the 1940 Act.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to sign any amendment that affects its rights, duties, obligations or
immunities under this Trust Agreement or otherwise.
Section 11.2. Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Trust Agreement, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Administrative
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the Administrative
Trustees one or more calls in a writing stating that the signing Holders of
Securities wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Certificates held by the Holders of
Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Trust Agreement or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
The Administrative Trustees may specify that any written ballot submitted to the
Security Holders for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing such proxy. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other person that the
Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Trust Agreement, the terms
of the Securities, the TIA or the listing rules of any stock exchange on
which the Preferred Securities are then listed for trading, otherwise
provides, the Administrative Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, waiver
of any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1. Representations and Warranties of the Property Trustee. The
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Trust Agreement, and each successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a banking corporation, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Trust Agreement;
(b) the Property Trustee satisfies the requirements set forth in Section
6.3;
(c) the execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Trust Agreement has been duly executed
and delivered by the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Trust Agreement by the
Property Trustee does not conflict with or constitute a breach of the articles
of association or incorporation, as the case may be, or the by-laws (or other
similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State (which term, in the case of the initial Property Trustee,
shall mean the State of __________) or federal banking authority having
jurisdiction over the trust powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee of this Trust
Agreement.
Section 12.2. Representations and Warranties of the Delaware Trustee. The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Trust Agreement, and each successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in Section
6.2, satisfies Trust Section 3807 of the Business Trust Act and has the power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Trust Agreement. This Trust Agreement
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and other
similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and
(c) no consent, approval or authorization of, or registration with or
notice to, the State of Delaware or federal banking authority is required for
the execution, delivery or performance by the Delaware Trustee of this Trust
Agreement.
ARTICLE 13
MISCELLANEOUS
Section 13.1. Notices. Any notice or communication is duly given if in
writing and delivered in person or mailed by first-class mail:
(a) if to the Trust, in care of the Administrative Trustees:
c/o Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) if to the Property Trustee:
[Name of Trustee]
[Address]
--------------------------------
--------------------------------
Attention:
----------------------
(c) if to the Delaware Trustee:
Chase Manhattan Bank USA, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(d) if to the Holder of the Common Securities:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice may be given to designate additional or different addresses for
subsequent notices or communications.
Any notice or communication to a Holder of Preferred Securities shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder of Preferred
Securities or any
defect in it shall not affect its sufficiency with respect to other Holders of
Preferred Securities.
If a notice or communication is mailed or published in the manner provided
above, within the time prescribed, it is duly given, whether or not the Holder
of Preferred Securities receives it.
If the Trust mails a notice or communication to Holders of Securities, it
shall mail a copy to the Property Trustee and each Agent at the same time.
Section 13.2. Communication by Holders with Other Holders. Holders of
Securities may communicate pursuant to TIA ss. 312(b) with other Holders of
Securities with respect to their rights under this Trust Agreement or the
Securities. The Trust, the Property Trustee, the Delaware Trustee, the Registrar
and anyone else shall have the protection of TIA ss. 312(c).
Section 13.3. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Trust to the Property Trustee to take any
action under this Trust Agreement, the Administrative Trustees shall furnish to
the Property Trustee:
(a) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Trust Agreement relating
to the proposed action have been complied with; and
(b) an opinion of counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 13.4. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Trust Agreement (other than a certificate provided pursuant
to TIA ss.314(a)(4)) shall comply with the provisions of TIA ss. 314(e) and
shall include:
(a) a statement that the person signing such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him 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 or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 13.5. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or a meeting of Holders of Securities. Any Agent
may make reasonable rules and set reasonable requirements for its functions.
Section 13.6. Legal Holidays. Unless otherwise provided by Officer's
Certificate, a "Legal Holiday" is any day that is not a Business Day. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
Distributions shall accrue for the intervening period.
Section 13.7. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Debenture Issuer shall not have any liability
for any obligations of the Debenture Issuer under the Securities, the Trust
Agreement, the Debentures or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
Section 13.8. Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Trust Agreement shall be
interpreted in a manner consistent with such classification.
Section 13.9. Counterparts. This Trust Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 13.10. Governing Laws. THIS TRUST AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF; PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY
TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION OF
ITS INCORPORATION.
Section 13.11. Successors. All agreements of the Trust in this Trust
Agreement and the Securities shall bind its successor. All agreements of the
Trustees in this Trust Agreement shall bind their respective successors.
Section 13.12. Severability. In case any provision in this Trust
Agreement or in the Securities 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 13.13. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table, and headings of the Articles and Sections of this Trust
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE SIGNATURE
PAGE FOLLOWS.]
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
OMNICOM GROUP INC.,
as Sponsor, as Common Securities Holder and as
Debenture Issuer
By:
------------------------------------------
Name:
Title:
---------------------------------------------
as Property Trustee
By:
------------------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
------------------------------------------
Name:
Title:
Xxxx Xxxx,
as Administrative Trustee
---------------------------------------------
Xxxxxxx Xxxxxxxxxxxx,
as Administrative Trustee
---------------------------------------------
Xxxxxx X. Xxxxxxxx,
as Administrative Trustee
---------------------------------------------
Xxxxxx X. Xxxxxx,
as Administrative Trustee
---------------------------------------------
Xxxxx X. Xxxxxx,
as Administrative Trustee
---------------------------------------------
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT THE
FOLLOWING:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST AGREEMENT, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.]
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE DEBENTURE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NO.___________ NUMBER OF PREFERRED SECURITIES:___________
CUSIP NO._________________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
OMNICOM CAPITAL TRUST [ ]
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $__ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY OMNICOM GROUP INC.
OMNICOM CAPITAL TRUST [ ], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that ________ (the
"Holder") is the registered owner of _____ preferred securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the "__%
Preferred Security" (liquidation amount $__ per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the
register of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in the Trust Agreement (as defined below). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the 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"), by and among OMNICOM GROUP INC., Xxxx Xxxx,
Xxxxxxx Xxxxxxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, and Xxxxx X. Xxxxxx,
as Administrative Trustees, _______________, as Property Trustee, Chase
Manhattan Bank USA, National Association, as Delaware Trustee and the Holders.
Capitalized terms used herein but not defined shall have the meaning given them
in the Trust Agreement. The Holder is entitled to the benefits of the Guarantee
to the extent described therein. The Sponsor will provide a copy of the Trust
Agreement, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business. Upon 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 Securities as evidence of undivided indirect beneficial ownership
interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ______
day of , ____.
OMNICOM CAPITAL TRUST [ ]
By:________________________________
Name:
Title: Administrative Trustee
This is one of the Preferred Securities referred to in the within-mentioned
Trust Agreement.
__________________________,
as Property Trustee
By:________________________
Name:
Authorized Officer
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW.
CERTIFICATE NO.___________ NUMBER OF COMMON SECURITIES:___________
CUSIP NO._________________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OMNICOM CAPITAL TRUST [ ]
% COMMON SECURITIES
(LIQUIDATION AMOUNT $__ PER COMMON SECURITY)
OMNICOM CAPITAL TRUST [ ], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that OMNICOM GROUP
INC. (the "Holder") is the registered owner of common securities of the Trust
representing an undivided beneficial ownership interest in the assets of the
Trust designated the "_____% Common Securities" (liquidation amount $__ per
Common Security) (the "Common Securities"). The Common Securities are not
transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Trust Agreement (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust, dated as of ____________ ___, ____ (as
the same may be amended from time to time, the "Trust Agreement"), by and among
OMNICOM GROUP INC., as Sponsor, Xxxx Xxxx, Xxxxxxx Xxxxxxxxxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, as Administrative Trustees, and
____________, as Property Trustee, Chase Manhattan Bank USA National
Association, as Delaware Trustee and the Holders. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the Trust
Agreement. The Sponsor will provide a copy of the Trust Agreement, the Guarantee
and the Indenture to the Holder without charge upon written request to the
Sponsor at its principal place of business. Upon 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 Securities as
evidence of an undivided indirect beneficial ownership interest in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day
of ______, ____.
OMNICOM CAPITAL TRUST [ ]
By:______________________________
Name:
Title: Administrative Trustee
This is one of the Common Securities referred to in the within-mentioned Trust
Agreement.
__________________________,
as Property Trustee
By:_______________________
Name:
Authorized Officer
