EXHIBIT 4.4
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AMENDED AND RESTATED
TRUST AGREEMENT
among
THE BEAR XXXXXXX COMPANIES INC., as Depositor,
THE CHASE MANHATTAN BANK
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee,
THE ADMINISTRATORS NAMED HEREIN,
and
THE SEVERAL HOLDERS OF THE TRUST CERTIFICATES
Dated as of January 29, 1997
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TABLE OF CONTENTS
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ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . . . 12
SECTION 2.4. Issuance of the Capital Securities. . . . . . . . 12
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures . . . . . . . . . . . . 13
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . 13
SECTION 2.7. Authorization to Enter into Certain Transactions . 14
SECTION 2.8. Assets of Trust. . . . . . . . . . . . . . . . . . 19
SECTION 2.9. Title to Trust Property . . . . . . . . . . . . . 19
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. . . . . . . . . . . . . . . . . . 19
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. . . . . . . . . . . . . . . . . . . 20
SECTION 4.2. Redemption. . . . . . . . . . . . . . . . . . . . 21
SECTION 4.3. Subordination of Common Securities . . . . . . . . 23
SECTION 4.4. Payment Procedures . . . . . . . . . . . . . . . . 24
SECTION 4.5. Tax Returns and Reports . . . . . . . . . . . . . 24
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust . . . 24
SECTION 4.7. Reduction for Payments under Indenture or Pursuant
to Direct Actions . . . . . . . . . . . . . . . . 24
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership . . . . . . . . . . . . . . . . 25
SECTION 5.2. The Trust Securities Certificates; Execution and
Delivery Thereof . . . . . . . . . . . . . . . . . 25
SECTION 5.3. Transfer of Capital Securities. . . . . . . . . . 26
SECTION 5.4. Registration of Transfer and Exchange of Capital
Securities Certificates . . . . . . . . . . . . . 27
SECTION 5.5.Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates 28
SECTION 5.6. Persons Deemed Securityholders . . . . . . . . . . 29
SECTION 5.7. Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.8. Maintenance of Office or Agency for Transfers . . 30
SECTION 5.9. Appointment of Paying Agent . . . . . . . . . . . 30
SECTION 5.10. Ownership of Common Securities by Depositor . . . 31
SECTION 5.11. Book-Entry Interests. . . . . . . . . . . . . . . 31
SECTION 5.12. Notices to Clearing Agency . . . . . . . . . . . . 33
SECTION 5.13. Procedures for Issuance of Definitive Capital
Securities Certificates . . . . . . . . . . . . . 33
SECTION 5.14. Rights of Securityholders . . . . . . . . . . . . 34
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights . . . . . . . . . . . 36
SECTION 6.2. Notice of Meetings . . . . . . . . . . . . . . . . 37
SECTION 6.3. Meetings of Capital Securityholders . . . . . . . 37
SECTION 6.4. Voting Rights . . . . . . . . . . . . . . . . . . 38
SECTION 6.5. Proxies, etc. . . . . . . . . . . . . . . . . . . 38
SECTION 6.6. Securityholder Action by Written Consent . . . . . 38
SECTION 6.7. Record Date for Voting and Other Purposes . . . . 39
SECTION 6.8. Acts of Securityholders . . . . . . . . . . . . . 39
SECTION 6.9. Inspection of Records . . . . . . . . . . . . . . 40
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee . . . . . . . . . 40
SECTION 7.2. Representations and Warranties of Depositor . . . 41
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Corporate Property Trustee Required; Eligibility
of Trustees . . . . . . . . . . . . . . . . . . . 42
SECTION 8.2. Certain Duties and Responsibilities . . . . . . . 43
SECTION 8.3. Certain Notices . . . . . . . . . . . . . . . . . 44
SECTION 8.4. Certain Rights of Property Trustee . . . . . . . . 45
SECTION 8.5. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.6. May Hold Securities . . . . . . . . . . . . . . . 47
SECTION 8.7. Compensation; Indemnity; Fees . . . . . . . . . . 47
SECTION 8.8. Conflicting Interests. . . . . . . . . . . . . . . 49
SECTION 8.9. Co-Trustees and Separate Trustee . . . . . . . . . 49
SECTION 8.10. Resignation and Removal; Appointment of Successor 50
SECTION 8.11. Acceptance of Appointment by Successor . . . . . . 52
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.13. Property Trustee May File Proofs of Claim . . . . 53
SECTION 8.14. Reports by Property Trustee. . . . . . . . . . . . 53
SECTION 8.15. Reports to the Property Trustee . . . . . . . . . 54
SECTION 8.16. Evidence of Compliance with Conditions Precedent . 54
SECTION 8.17. Number of Trustee . . . . . . . . . . . . . . . . 54
SECTION 8.18. Delegation of Power. . . . . . . . . . . . . . . . 55
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date . . . . . . . . . 55
SECTION 9.2. Early Dissolution . . . . . . . . . . . . . . . . 55
SECTION 9.3. Dissolution . . . . . . . . . . . . . . . . . . . 56
SECTION 9.4. Liquidation . . . . . . . . . . . . . . . . . . . 56
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . . . . 57
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders to
Terminate Trust . . . . . . . . . . . . . . . . . 58
SECTION 10.2. Amendment . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.3. Separability . . . . . . . . . . . . . . . . . . . 60
SECTION 10.4. Governing Law . . . . . . . . . . . . . . . . . . 60
SECTION 10.5. Payments Due on Non-Business Day . . . . . . . . . 61
SECTION 10.6. Successors. . . . . . . . . . . . . . . . . . . . 61
SECTION 10.7. Headings. . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.8. Reports, Notices and Demands . . . . . . . . . . . 61
SECTION 10.9. Agreement Not to Petition . . . . . . . . . . . . 62
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture . . . . . . . . . . . . . . . . . . 63
SECTION 10.12. Counterparts . . . . . . . . . . . . . . . . . . . 63
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
------------------ ---------------
(ss.)310 (a)(l) . . . . . . . . . . . . . . . . . . . 8.1
(a)(2) . . . . . . . . . . . . . . . . . . . 8.1
(a)(3) . . . . . . . . . . . . . . . . . . . 8.9
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 8.8
(ss.)311 (a) . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . 8.13
(ss.)312 (a) . . . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . . 5.7
(ss.)313 (a) . . . . . . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . . . . . 8.14(c)
(ss.)314 (a) . . . . . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 8.16
(c)(2) . . . . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . 1.1, 8.16
(ss.)315 (a) . . . . . . . . . . . . . . . . . . . . . 8.2
(b) . . . . . . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . . . . . 8.2
(d) . . . . . . . . . . . . . . . . . . . . . 8.2
(e) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(ss.)316 (a) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . 6.7
(ss.)317 (a)(1) . . . . . . . . . . . . . . . . . . .
(a)(2) . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . 5.9
(ss.)318 (a) . . . . . . . . . . . . . . . . . . . . . 10.10
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Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of January
29, 1997 among The Bear Xxxxxxx Companies Inc., a Delaware corporation
(including any successors or assigns, the "Depositor"), (ii) The Chase
Manhattan Bank, a banking corporation duly organized and existing
under the laws of the State of New York, as property trustee (in such
capacity, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Chase Manhattan Bank Delaware, a Delaware banking corporation
that maintains its principal place of business in Delaware, as
Delaware Trustee (the "Delaware Trustee"), (the Property Trustee and
the Delaware Trustee referred to jointly as the "Trustees"), (iv)
Xxxxxxx X. Xxxxxxxxx, an individual, Xxxxxx X. Xxxxxxxx, Xx., an
individual and Xxxxxxx X. Xxxxx, an individual, each of whose address
is c/o The Bear Xxxxxxx Companies Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (each an "Administrator", all collectively, the
"Administrators") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee, as
applicable, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by entering into
that certain Trust Agreement, dated as of January 14, 1997 (the
"Original Trust Agreement"), and by the execution and filing with the
Secretary of State of the State of Delaware of a Certificate of Trust,
filed on January 14, 1997, attached as Exhibit A (the "Certificate of
Trust");
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale
of the Capital Securities by the Trust pursuant to the Purchase
Agreement and the Registration Rights Agreement, (iii) the acquisition
by the Trust from the Depositor of all of the right, title and
interest in the Debentures, (iv) the appointment of the Administrators
and (v) the exchange by the Property Trustee with the Depositor of the
Original Debentures for the Exchange Debentures, and the exchange by
the Trust with the Holders of the Original Capital Securities for the
Exchange Capital Securities, each such exchange registered under the
Securities Act;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, each
party, for the benefit of the other parties and for the benefit of the
Securityholders, hereby amends and restates the Original Trust
Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the amount of
Additional Interest, Compounded Interest (each as defined in the
Indenture) and Additional Sums paid by the Depositor on a Like Amount
of Debentures for such period.
"Additional Sums" has the meaning specified in Section 4.08
of the Indenture.
"Administrators" has the meaning specified in the preamble
to this Agreement or any successors appointed in accordance with
Section 8.10 solely in such Person's capacity as Administrator of the
Trust heretofore created and continued hereunder and not in such
Person's individual capacity.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person 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 a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Capital Securities Certificates" has the meaning
specified in Section 5.11.
"Business Day" means any day which is not a Saturday or
Sunday and which in The City of New York is neither a legal holiday
nor a day on which banking institutions are authorized or required by
law or regulation to close or a day on which the corporate trust
office of the Property Trustee or the Debenture Trustee is closed for
business.
"Capital Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as
provided herein. The Capital Securities shall consist of the Original
Capital Securities and, if issued, the Exchange Capital Securities.
"Capital Securities Certificate" means a certificate
evidencing ownership of Capital Securities, substantially in the form
attached as Exhibit D.
"Certificate Depository Agreement" means the agreement among
the Trust, the Property Trustee and DTC, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. DTC
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time
a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means January 29, 1997, which is the date of
execution and delivery of this Trust Agreement, or such other date as
may be designated the Closing Date pursuant to the Purchase Agreement.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this Trust Agreement such
Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties
at such time.
"Common Security" means a common undivided beneficial
interest in the assets of the Trust, having a Liquidation Amount of
$1,000 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the form
attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal corporate trust office of the
Property Trustee and (ii) when used with respect to the Debenture
Trustee, the principal corporate trust office of the Debenture
Trustee.
"Debenture Applicable Rate" means the "Applicable Rate" as
defined in the Indenture.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for
redemption under the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, and any
successor thereto under the Indenture.
"Debentures" means the aggregate principal amount of the
Depositor's Fixed/Adjustable Rate Junior Subordinated Deferrable
Interest Debentures due January 15, 2027 issued pursuant to the
Indenture.
"Definitive Capital Securities Certificates" means Capital
Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be
amended from time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust created and continued
hereunder, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to
this Trust Agreement.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in
Section 9.2.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for
a period of 30 days; or
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance or breach of which is dealt with in clause (b) or (c)
above), and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Capital
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to
the Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Capital Securities" has the meaning specified in
Section 2.4
"Exchange Debentures" means a new series of junior
subordinated debentures issued by the Depositor in an exchange offer
for the Original Debentures, such exchange offer being registered
under the Securities Act, all pursuant to the Registration Rights
Agreement.
"Exchange Offer" means an exchange offer of the Exchange
Capital Securities for the Original Capital Securities, which is
registered under the Securities Act pursuant to Registration Rights
Agreement.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Capital Securities Guarantee Agreement
executed and delivered by the Depositor and The Chase Manhattan Bank,
as trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Capital
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of
the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of January 29,
1997, between the Depositor and the Debenture Trustee, as trustee, as
supplemented by the First Supplemental Indenture of the same date, as
amended or supplemented from time to time.
"Initial Purchasers" means the initial purchasers named in
Schedule I to the Purchase Agreement.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest, hypothecation,
assignment, security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever.
"Like Amount" means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount equal
to the principal amount of Debentures to be contemporaneously redeemed
in accordance with the Indenture the proceeds of which will be used to
pay the Redemption Price of such Trust Securities, and (b) with
respect to a distribution of Debentures to Holders of Trust Securities
in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a
termination and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board or any Vice Chairman of the Board or the
President or any Executive Vice President or Chief Operating Officer
or Chief Financial Officer of the Depositor and by the Treasurer or an
Assistant Treasurer or Controller or the Secretary or an Assistant
Secretary of the Depositor and delivered to the appropriate Trustee.
Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor
(including counsel who is an employee of the Depositor), who is
experienced in matters related to the substance of the opinion.
"Original Capital Securities" has the meaning specified in
Section 2.4.
"Original Debentures" means the aggregate principal amount
of the Depositor's Fixed/Adjustable Rate Junior Subordinated
Deferrable Interest Debentures due January 15, 2027, issued pursuant
to the Indenture on the Closing Date.
"Original Guarantee" means the Guarantee extended by the
Depositor for the benefit of the Holders of Original Capital
Securities.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities
theretofore executed and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the
Securities Registrar or delivered to the Securities Registrar for
cancellation;
(b) Trust Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Trust
Securities; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange
for or in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided,
however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Capital Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Capital Securities that such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the outstanding Capital Securities are owned by the
Depositor, one or more of the Trustees and/or any such
Affiliate. Capital Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrators the pledgee's right so to
act with respect to such Capital Securities and that the pledgee is
not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Capital Securities Certificate as reflected in the records
of the Clearing Agency or, if a Clearing Agency Participant is not the
Owner, then as reflected in the records of a Person maintaining an
account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the
Bank in its trust department for the benefit of the Securityholders in
which all amounts paid in respect of the Debentures will be held and
from which the Property Trustee, through the Paying Agent, shall make
payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political
subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and
Trading through Automated Linkages Market operated by the National
Association of Securities Dealers, Inc. (or any successor thereto).
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to this
Trust Agreement solely in its capacity as Property Trustee of the
Trust heretofore created and continued hereunder, or its successor in
interest in such capacity, or any successor property trustee appointed
as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as
of January 22, 1997 among the Trust, the Depositor and the Initial
Purchasers named therein.
"QIB" means a "qualified institutional buyer" as defined in
Rule l44A.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided that each Debenture Redemption Date and
the stated maturity of the Debentures shall be a Redemption Date for a
Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust
Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, paid by the Depositor upon the
concurrent redemption of a Like Amount of Debentures, allocated on a
pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Registration Rights Agreement" means the Registration
Rights Agreement dated the date hereof among the Depositor, the Trust
and the Initial Purchasers for the benefit of themselves and the
Holders as the same may be amended from time to time in accordance
with the terms thereof.
"Relevant Trustee" shall have the meaning specified in
Section 8.10
"Restricted Security" has the meaning specified in Section
5.3(c).
"Rule 144" means Rule 144 as promulgated under the
Securities Act, or any successor rule.
"Rule 144A" means Rule 144A as promulgated under the
Securities Act, or any successor rule.
"Rule 144A Capital Securities" means the Capital Securities
sold by the Initial Purchasers in reliance on Rule 144A.
"Rule 144(k)" means Rule 144(k) as promulgated under the
Securities Act, or any successor rule.
"Securities Act Legend" has the meaning specified in Section
5.3.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4
"Securityholder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register;
any such Person shall be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Interest" shall have the meaning specified in the
Indenture.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or
applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after
the date of issuance of the Capital Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures is not, or within 90 days after the
date of such Opinion of Counsel, will not be, deductible by the
Depositor, in whole or in part, for United States Federal income tax
purposes or (iii) the Trust is, or will be within 90 days after the
date of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges. For
purposes of a Tax Event and the redemption procedures applicable
thereto, reference to the Debentures shall include any Exchange
Debentures issued in exchange therefor.
"Transfer Restriction Termination Date" means with respect
to any particular Capital Security the first date on which such
Capital Security (other than a Capital Security held by the Trust or
any Affiliate thereof) may be sold pursuant to Rule 144(k).
"Trust" means the Delaware business trust created under the
Original Trust Agreement and continued hereby and identified on the
cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including for all
purposes of this Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and
rights in respect of the foregoing and any other property and assets
for the time being held or deemed to be held by the Property Trustee
pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or
the Capital Securities. The Trust Securities represent undivided
beneficial interests in the Trust Property.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Bear Xxxxxxx
Capital Trust I" as such name may be modified from time to time by the
Administrators following written notice to the Securityholders and the
Trustees, in which name the Property Trustee and the Administrators
may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business.
The address of the Delaware Trustee in the State of Delaware
is Chase Manhattan Bank Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trustee Administration
Department, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of
the Trust is c/o The Bear Xxxxxxx Companies Inc. 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Trust acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
The Depositor, on behalf of the Trust and pursuant to the
Original Trust Agreement, executed and delivered the Purchase
Agreement. Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrator, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Initial
Purchasers, Capital Securities Certificates, registered in the name of
the nominee of the initial Clearing Agency, in an aggregate amount of
200,000 Capital Securities (the "Original Capital Securities")
having an aggregate Liquidation Amount of $200,000,000 against receipt
of an aggregate purchase price for such Capital Securities of
$199,884,000 ($999.42 per Capital Security). The Original Capital
Securities shall consist of Rule 144A Capital Securities.
In addition, an Administrator, on behalf of the Trust, shall
execute Capital Securities Certificates in accordance with Section 5.2
representing an additional class of Capital Securities to be issued
only in exchange for all or part of the Original Capital Securities
pursuant to the Exchange Offer contemplated by the Registration Rights
Agreement ("Exchange Capital Securities"); provided, that the
aggregate number of issued and outstanding Capital Securities shall
not at any time exceed 200,000 less the number of Capital Securities
redeemed pursuant to Section 4.2.
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures.
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrator, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor,
Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of 6,186 Common Securities having an
aggregate Liquidation Amount of $6,186,000 against payment by the
Depositor of an aggregate purchase price of $6,182,412.12 ($999.42 per
Common Security). Contemporaneously therewith, an Administrator, on
behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee
and having an aggregate principal amount equal to $206,186,000 and, in
satisfaction of the purchase price for such Debentures, the Trust
shall deliver to the Depositor the sum of $206,066,412.12 such sum
being the sum of the amounts delivered to the Trust pursuant to (i)
the second sentence of Section 2.4 and (ii) the first sentence of this
Section 2.5).
SECTION 2.6. Declaration of Trust; Intention of Parties
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities (including the Exchange Capital
Securities pursuant to the Exchange Offer), (b) to use the proceeds
from such sale to acquire the Original Debentures, (c) to exchange the
Original Debentures for the Exchange Debentures pursuant to the
Indenture and (d) to engage in those activities necessary, convenient
or incidental thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust and the Administrators, to have all the rights,
powers and duties to the extent set forth herein, and the Trustees and
the Administrators hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of
the Trust and the Securityholders. The Administrators shall have only
those ministerial duties set forth herein with respect to
accomplishing the purposes of the Trust and, to the fullest extent
permitted by law, shall not be trustees or fiduciaries with respect to
the Trust. The Property Trustee shall have the power (but not the
obligation) to perform those duties
assigned to the Administrators. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have
any of the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any assets, or otherwise
undertake or permit to be undertaken any activity that would cause the
Trust not to be classified for United States federal income tax
purposes as a grantor trust. It is the intention of the parties hereto
that the Trust be classified as a grantor trust for United States
federal income tax purposes. The provisions of this Agreement shall be
interpreted to further this intention of the parties.
SECTION 2.7. Authorization to Enter into Certain
Transactions.
(a) The Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of
this Section, and in accordance with the following provisions (i) and
(ii), the Trustees and the Administrators shall have the authority to
enter into all transactions and agreements determined by the Trustees
or the Administrators to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees or the
Administrators under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) Each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Certificate Depository Agreement, the Registration Rights
Agreement and such other agreements as may be necessary or
desirable in connection with the purposes and function of
the Trust;
(C) assisting in the qualification of the Capital
Securities under any applicable state securities or blue sky
laws, as the same may be deemed necessary or advisable;
(D) assisting in the registration of the Exchange
Offer and the Exchange Capital Securities under the
Securities Act, and under the state securities or blue sky
laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act, all in
accordance with the Registration Rights Agreement;
(E) registration of the Capital Securities under
the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(F) assisting in the designation of the Capital
Securities for trading by QIBs in the PORTAL Market at the
time of issuance thereof, including the preparation,
execution and filing on behalf of the Trust an application,
prepared by the Depositor, to the PORTAL Market and the
preparation, execution and filing on behalf of the Trust of
documents or instruments to be delivered to the Clearing
Agency relating to the Capital Securities; or such other
market designation or listings as shall be determined by the
Depositor, and the registration of the Capital Securities
under the Exchange Act, if required by applicable law, and
the execution and filing of all applications, periodic and
other reports and other documents pursuant to the foregoing,
or the seeking of relief from same;
(G) the sending of notices (other than notices of
default) and other information regarding the Trust
Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
(H) the consent to the appointment of a Paying
Agent and Securities Registrar in accordance with this Trust
Agreement which consent shall not be unreasonably withheld
(I) execution of the Trust Securities on behalf
of the Trust in accordance with this Trust Agreement;
(J) execution and delivery of closing
certificates, if any, pursuant to the Purchase Agreement and
application for a taxpayer identification number for the
Trust;
(K) the taking of any action incidental to the
foregoing as the Administrators may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(L) execution and delivery of letters or
documents to, or instruments with DTC relating to the
Capital Securities;
(M) 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 ss. 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and
to issue relevant notices to the Holders of Capital
Securities and Holders of Common Securities as to such
actions and applicable record dates; and
(N) to duly prepare and file all applicable tax
returns and tax information reports that are required to be
filed with respect to the Trust on behalf of the Trust.
(ii) As among the Trustees and the Administrators, the
Property Trustee shall have the power, duty and authority to act
on behalf of the Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) subject to the provisions hereof, the
exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation
of the Trust and the preparation, execution and filing of
the certificate of cancellation with the Secretary of State
of the State of Delaware;
(I) to exchange the Original Debentures for the
Exchange Debentures in an exchange in connection with the
Exchange Offer pursuant to the Registration Rights
Agreement;
(J) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such
term if such Event of Default is by
or with respect to the Property Trustee) the taking of any
action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement and protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder); and
(K) to take all reasonable action at the
direction of the Depositor 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 Capital Securities or to enable the Trust
to effect the purposes for which the Trust was created;
(iii) The Property Trustee shall have the power and
authority to act on behalf of the Trust with respect to any of
the duties, liabilities, powers or the authority of the
Administrators set forth in Section 2.7(a)(i)(I); and in the
event of a conflict between the action of the Administrators and
the action of the Property Trustee, the action of the Property
Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees or the Administrators acting on behalf of the
Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In
particular, neither the Trustees nor the Administrators shall, on
behalf of the Trust, (i) acquire any investments or assets other than
the Trust Property or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed
money or issue any other debt or (v) take or consent to any action
that would result in the placement of a Lien on any of the Trust
Property. The Property Trustee shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issuance and sale of the Capital
Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust,
the following (and any actions taken by the Depositor in furtherance
of the following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) the preparation by the Trust of an offering
circular, including any amendment or supplement thereto, in
relation to the Original Capital Securities;
(ii) the compliance by the Trust with the Registration
Rights Agreement, including the preparation and filing by the
Trust with the Commission and the execution on behalf of the
Trust of a registration statement or statements on the
appropriate form in relation to the Capital Securities, including
any amendments thereto and/or a "shelf" registration statement to
register the Original Capital Securities, the Original Guarantee
and the Original Debentures pursuant to the Registration Rights
Agreement;
(iii) preparation of an application for designation of
the Capital Securities for trading in the PORTAL Market of the
National Association of Securities Dealers, Inc. at the time of
issuance thereof; and
(iv) the determination of the states, if any, in which
to take appropriate action to qualify or register for sale all or
part of the Capital Securities and the determination of any and
all such acts, other than actions which must be taken by or on
behalf of the Trust, and the advice to the Trustees of actions
they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by
the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable
laws of any such state; and
(v) if the Depositor shall desire, the preparation for
filing by the Trust and execution on behalf of the Trust of an
application to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for listing, upon
notice of issuance, of any Capital Securities; and the
preparation for filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration statement on
Form 8-A relating to the registration of the Capital Securities
under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(vi) the negotiation of the terms of, and the execution
and delivery of, the Purchase Agreement providing for the sale of
the Capital Securities; and
(vii) any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required to be
registered under the 1940 Act or fail to be classified as a grantor
trust for United States Federal income tax purposes and so that the
Debentures will be treated as
indebtedness of the Depositor for United States Federal income tax
purposes. In this regard, the Property Trustee shall be protected if
it shall have conducted the affairs of the Trust and operated the
Trust in accordance with its rights, powers and duties as specifically
set forth in this Trust Agreement. In this connection, the
Administrators, the Property Trustee and the Holder of the Common
Securities are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that
any of the Administrators, Property Trustee and the Holder of the
Common Securities determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not
materially adversely affect the interests of the Holders of the
Capital Securities. The Property Trustee shall not be required to
take any action under this clause (d) unless directed to do so by the
Depositor, the Administrators or (subject to the provisions hereof) by
Holders of not less than a majority in Liquidation Amount of the Trust
Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all
times in the Property Trustee (in its capacity as such) and shall be
held and administered by the Property Trustee for the benefit of the
Trust and the Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any
agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account
shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as
herein provided, including (and subject to) any priority of payments
provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) Distributions (including Distributions of Additional
Amounts and/or Special Interest, if applicable) will be made on the
Trust Securities at the rate and on the dates that payments of
interest (including Additional Amounts and Special Interest) are made
on the Debentures. Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall
accumulate from January 29, 1997 and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable
semiannually on January 15, and July 15, of each year, commencing on
July 15, 1997. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day
that is a Business Day or if such Business Day falls in the next
calendar year, on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date (each
date on which Distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date"). Until January 15, 2002, in
the event that any January 15 or July 15 is not a Business Day,
Distributions will be paid on the next succeeding Business Day,
without any interest or other payment with respect to any such delay.
After January 15, 2002, Distributions shall be the amount of
Distributions accumulated from, and including, the last date on which
Distributions have previously been paid, to, but excluding, the
Distribution Date.
(b) Assuming payments of interest on the Debentures are
made when due (and before giving effect to any Additional Amounts
and/or Special Interest, if applicable), Distributions on the Trust
Securities shall be payable at a rate of 7.00% per annum of the
Liquidation Amount of the Trust Securities until January 15, 2002, and
at the Debenture Applicable Rate of the Liquidation Amount thereafter.
The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months until
January 15, 2002, and thereafter on the basis of a 360-day year and
the actual number of days elapsed. The amount of Distributions
payable for any period shall include the Additional Amounts, if any,
and Special Interest, if any.
(c) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the first day
of the month in which the relevant Distribution Date occurs.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date to each Holder of
Trust Securities, at such Holder's address appearing in the Security
Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price
cannot be calculated prior to the time the notice of redemption
is required to be sent, the manner of calculation thereof;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accumulate
on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Capital Securities, then, by 10:00 a.m., New York City
time, on the Redemption Date, the Depositor shall deposit sufficient
funds with the Property Trustee to pay the Redemption Price. If such
deposit has been made, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will,
so long as the Capital Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Capital
Securities funds sufficient to pay the applicable Redemption Price and
will give such
Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof. If Capital Securities are no
longer in book-entry-only form, the Property Trustee, subject to
Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the
Redemption Price with respect to such Capital Securities to the
Holders thereof upon surrender of their Capital Securities
Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution. If notice of
redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price and any unpaid
Distribution payable on or prior to the Redemption Date, but without
interest, and such Trust Securities will cease to be outstanding. In
the event that any date on which any Redemption Price is payable is
not a Business Day, then payment of the Redemption Price 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 falls in the next calendar
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant
to the Guarantee, Distributions on such Trust Securities will continue
to accumulate, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the
date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on a date to be
established as the record date for the distribution by the
Administrators, which date shall be not more than 60 days nor less
than 30 days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date,
then the aggregate Liquidation Amount of Trust Securities to be
redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Capital Securities. The
particular Capital Securities to be redeemed shall be selected on a
pro rata basis (based upon Liquidation Amounts) not less than 30 nor
more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Capital Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate. Any such proration may be based on the aggregate
Liquidation Amount of Trust Securities held
by each Holder and in making any such proration the Property Trustee
may make such adjustments as may be appropriate in order that only
Trust Securities in Liquidation Amount equal to $1,000 or integral
multiples of $1,000 in excess thereof shall be redeemed. The Property
Trustee shall promptly notify the Securities Registrar in writing of
the Capital Securities selected for redemption and, in the case of any
Capital Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Capital Securities shall relate, in the
case of any Capital Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Capital Securities
that has been or is to be redeemed.
(g) 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 Trust
Securities on the next Distribution Date.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts
and/or Special Interest, if applicable) on, and the Redemption Price
of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(f), pro rata among the Common Securities and the Capital
Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date
any Event of Default resulting from a Debenture Event of Default shall
have occurred and be continuing, no payment of any Distribution
(including Additional Amounts or Special Interest, if applicable) on,
or Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable, and/or Special Interest, if applicable) on all Outstanding
Capital Securities, for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the
full amount of such Redemption Price on all Outstanding Capital
Securities then called for redemption, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts and/or Special Interest,
if applicable) on, or the Redemption Price of, Capital Securities then
due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any right to act with respect
to any such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the Capital
Securities have been cured, waived or otherwise eliminated. Until any
such Event of Default under this Trust Agreement with respect to the
Capital Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the
Capital
Securities and not the Holder of the Common Securities, and only the
Holders of the Capital Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts
and/or Special Interest, if applicable) in respect of the Capital
Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities
Register or, if the Capital Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at
such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Common
Securityholder.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state
and local tax and information returns and reports required to be filed
by or in respect of the Trust. In this regard, the Administrators
shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required
to be so provided and furnished. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums and the
written direction of any of the Administrators, the Property Trustee
shall promptly pay, solely out of monies on deposit pursuant to this
Trust Agreement, any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
SECTION 4.7. Reduction for Payments under Indenture or
Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital
Securities shall be reduced by the amount of any corresponding payment
such Holder (or an Owner with respect
to the Holder's Capital Securities) has directly received pursuant to
the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the
Trust.
SECTION 5.2. The Trust Securities Certificates; Execution
and Delivery Thereof.
(a) The Capital Securities Certificates shall be issued in
minimum denominations of $1,000 Liquidation Amount and integral
multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $1,000 Liquidation
Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrator and shall be dated their date
of execution. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections
5.4, 5.11 and 5.13.
(b) At the Closing Date, the Administrators, or any of
them, shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed
on behalf of the Trust and delivered to or upon the written order of
the Depositor, signed by its Chairman of the Board, any Vice Chairman
of the Board, its President, any Executive Vice President, its Chief
Operating Officer, its Chief Financial Officer, its Treasurer or any
Assistant Treasurer or its Controller, without further corporate
action by the Depositor, in authorized denominations.
SECTION 5.3. Transfer of Capital Securities.
(a) Capital 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 Capital Securities. To the
fullest extent permitted by law, any transfer or purported transfer of
any Capital Security not made in accordance with this Trust Agreement
shall be null and void.
(b) Subject to this Section 5.3, Capital Securities shall
be freely transferable; provided, however, that no transfer shall be
effected unless such transfer (whether by sale or any other
disposition) is comprised of a block of Capital Securities having an
aggregate Liquidation Amount of not less than $100,000. Any transfer,
sale or other disposition of Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever. Any such transferee shall be
deemed not to be the Holder of such Capital Securities for any
purpose, including but not limited to the receipt of Distributions on
such Capital Securities, and such transferee shall be deemed to have
no interest whatsoever in such Capital Securities.
(c) Beneficial ownership of every Original Capital Security
is subject to the restrictions on transfer imposed by the Securities
Act and rules and regulations promulgated by the Commission thereunder
and each certificate representing Original Capital Securities
("Restricted Securities") shall bear the restrictive legend (the
"Securities Act Legend") set forth in this Section 5.3, unless such
restrictions on transfer shall be terminated in accordance with this
Section. The Holder of each Original Capital Security, by such
Holder's acceptance thereof, agrees to be bound by such restrictions
on transfer.
Each Restricted Security shall bear the following Securities
Act Legend:
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (i)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE
CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR
(ii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
THE TRUST SO REQUESTS) OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES AND OTHER JURISDICTIONS.
The restrictions imposed by Section 5.3(c) upon the
transferability of any particular Original Capital Security shall
cease and terminate upon (i) the Transfer Restriction Termination Date
or (ii) delivery by at least one Administrator on behalf of the Trust
to the Property Trustee of an Officers' Certificate and Opinion of
Counsel stating that such Original Capital Security has been sold
pursuant to an effective registration statement under the Securities
Act, exchanged for a corresponding Liquidation Amount of Exchange
Capital Securities pursuant to an effective registration statement
under the Securities Act, or transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto) or
transferred in accordance with another exemption from registration
under the Securities Act in a transaction that results in such Capital
Securities no longer being "restricted securities" under Rule 144 (or
any successor provision thereto). Any Original Capital Security as to
which such Administrator has delivered to the Property Trustee an
Officers' Certificate and Opinion of Counsel that such restrictions on
transfer shall have expired in accordance with their terms or shall
have terminated may, upon surrender of such Original Capital Security
for exchange to the Securities Registrar or any transfer agent in
accordance with the provisions of this Section 5.3(c) be exchanged for
a new Capital Security, of like tenor and aggregate Liquidation
Amount, which shall not bear the Securities Act Legend. The
Administrator shall inform the Property Trustee in writing of the
effective date of any registration statement registering the Original
Capital Securities or the Exchange Capital Securities under the
Securities Act. The Property Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance
with the aforementioned registration statement, Officers' Certificate
or Opinion of Counsel.
Any Original Capital Security that, prior to the Transfer
Restriction Termination Date, is purchased or owned by the Depositor
or any Affiliate thereof may not be resold by the Depositor or such
Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the
Securities Act.
SECTION 5.4. Registration of Transfer and Exchange of
Capital Securities Certificates.
The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.8, a register for the
purpose of registering Trust Securities Certificates and transfers and
exchanges of Capital Securities Certificates (the "Securities
Register") in which the registrar designated by the Depositor (the
"Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration
of Capital Securities Certificates and Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Capital
Securities Certificates as herein provided. The Bank shall be the
initial Securities Registrar. The Securities Registrar shall not be
required to register the transfer or exchange of any Capital
Securities (i) during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of
Capital Securities and ending at the close of business on the day of
such mailing or (ii) that have been selected for redemption in whole
or in part, except the unredeemed portion of any Capital Security
redeemed in part.
Upon surrender for registration of transfer of any Capital
Securities Certificate at the office or agency maintained pursuant to
Section 5.8, the Administrators or any one of them shall execute and
the Property Trustee shall deliver, in the name of the designated
transferee or transferees, one or more new Capital Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrator.
Subject to Section 5.11, at the option of a Holder, Capital Securities
Certificates may be exchanged for other Capital Securities
Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Capital
Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
Every Capital Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory
to the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Capital Securities
Certificate surrendered for registration of transfer or exchange shall
be cancelled and subsequently disposed of by the Property Trustee or
the Securities Registrar in accordance with such Person's customary
practice.
No service charge shall be made for any registration of
transfer or exchange of Capital Securities Certificates, but the
Securities Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Capital Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and (b)
there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrators, or any one of them, on behalf of the
Trust shall execute and make available
for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate
under this Section, the Administrators or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Trust Securities Certificate issued pursuant to this Section
shall constitute conclusive evidence of an undivided beneficial
interest in the Trust Property, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, destroyed, lost or stolen
Trust Securities.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees, the Administrators or the Securities Registrar
shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever (subject to the
record date provisions hereof), and neither the Trustees nor the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and
Addresses.
At any time when the Property Trustee is not also acting as
the Securities Registrar, the Depositor shall furnish or cause to be
furnished to the Property Trustee, semiannually not more than 5 days
after January 1 and July 1 of each year beginning with July 1997, and
at such other times as the Property Trustee may request in writing
within 30 days after receipt by the Depositor of any such request, a
list, in such form as the Property Trustee may reasonably require
containing all information in the possession or control of the
Depositor, or any Paying Agent or any registrar of the Trust
Securities other than the Property Trustee, as to the names and
addresses of the Securityholders obtained (in the case of each list
other than the first list) since the date as of which the next
previous list was furnished. Any such list may be dated as of a date
not more than fifteen days prior to the time such information is
furnished or caused to be furnished, and need not include information
received after such date. The rights of Securityholders to
communicate with other Securityholders with respect to their rights
under this Trust Agreement or under the Trust Securities, and the
corresponding obligations and rights of the Property Trustee, shall be
as provided in the Trust Indenture Act. Each Holder, by receiving and
holding a Trust Securities Certificate, and each Owner shall be deemed
to have agreed not to hold the Depositor, the Property Trustee or the
Administrators accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency for Transfers.
The Administrators or the Property Trustee shall maintain an
office or offices or agency or agencies where Capital Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The
Administrators initially designate The Chase Manhattan Bank, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trustee
Administration Department, as the office or agency for such purposes.
The Administrators or the Property Trustee shall give prompt written
notice to the Depositor and to the Securityholders of any change in
the location of the Securities Register or any such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders
from the Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Administrators. Any
Paying Agent shall have the revocable power to withdraw funds from the
Payment Account for the purpose of making the Distributions referred
to above. The Property Trustee may revoke such power and remove the
Paying Agent if such Trustee determines in its sole discretion that
the Paying Agent shall have failed to perform its obligations under
this Trust Agreement in any material respect. The Paying Agent shall
initially be the Bank, and any copaying agent chosen by the Bank, and
acceptable to the Administrators and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrators, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority
to act be revoked, the Administrators shall appoint a successor that
is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The
Administrators shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrators to execute and
deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders
entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.2, 8.4 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the
Bank shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, other than a transfer in connection
with a consolidation or merger of the Depositor into another Person,
or any sale or conveyance by the Depositor of all or substantially all
of its assets to any Person, pursuant to Article XI of the Indenture,
any attempted transfer of the Common Securities shall be void. The
Administrators shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
SECTION 5.11. Book-Entry Interests.
(a) So long as Capital Securities are eligible for book-
entry settlement with the Clearing Agency or unless otherwise required
by law, all Capital Securities that are so eligible will be
represented by one or more fully registered Capital Securities
Certificates (each a "Book Entry Capital Securities Certificate") in
global form to be delivered to the Clearing Agency or its custodian,
by, or on behalf of, the Trust. Such Book Entry Capital Securities
Certificates shall initially be registered on the Securities Register
in the name of Cede & Co., the nominee of DTC, and no Owner will
receive a Definitive Capital Securities Certificate representing such
Owner's interests in such Book Entry Capital Securities Certificates,
except as provided in Section 5.11(d) below. The transfer and
exchange of beneficial interests in any such Capital Security in
global form shall be effected through the Clearing Agency in
accordance with this Trust Agreement and the procedures of the
Clearing Agency therefor.
(b) Except as provided in subparagraph (d) of this Section
5.11, Owners of a Capital Security in global form shall not be
entitled to have certificates registered in their names, will not
receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered Holders of such Capital
Securities in global form.
(c) Any Book Entry Capital Securities Certificate may be
endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Trust
Agreement as may be required by the Clearing Agency, by any national
securities exchange or by the National Association of Securities
Dealers, Inc. in order for the Capital Securities to be tradeable on
the PORTAL Market or as may be required for the Capital Securities to
be tradeable on any other market developed for trading of securities
pursuant to Rule l44A or required to comply with any applicable law or
any regulation thereunder or with the rules and regulations of any
securities exchange upon which the Capital Securities may be listed or
traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Capital Securities are subject.
(d) Notwithstanding any other provisions of this Trust
Agreement (other than the provisions set forth in this Section
5.11(d)), a Capital Security in global form may not be exchanged in
whole or in part for Capital Securities registered, and no transfer of
a Capital Security in global form may be registered, in the name of
any Person other than the Clearing Agency or nominee thereof unless
(i) such Clearing Agency (A) has notified the Property Trustee and the
Depositor that it is unwilling or unable to continue as Clearing
Agency for such global Capital Security and the Depositor on behalf of
the Trust thereupon fails to appoint a successor Clearing Agency
within 90 days after the receipt of such notice or (B) has ceased to
be a clearing agency registered as such under the Exchange Act, (ii)
the Depositor in its sole discretion elects to cause the issuance of
the Capital Securities in certificated form or (iii) there shall have
occurred and be continuing an Event of Default, or any event which
after notice or lapse of time or both would be an Event of Default
under the Trust Agreement, with respect to such global Capital
Security. Following exchange of a global Capital Security, or a
portion thereof, for a definitive Capital Security, no such definitive
Capital Security, or portion thereof, shall be included in any Book
Entry Capital Securities Certificate.
Unless and until Definitive Capital Securities Certificates
have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(d) shall be in
full force and effect;
(ii) the Securities Registrar, the Administrators and
the Trustees shall be entitled to deal with the Clearing Agency
for all purposes of this Trust Agreement relating to the Book-
Entry Capital Securities Certificates (including the payment of
the Liquidation Amount of and Distributions on the Capital
Securities evidenced by Book-Entry Capital Securities and the
giving of instructions or directions to Owners of Capital
Securities evidenced by Book-Entry Capital Securities) as the
sole Holder of Capital Securities evidenced by Book-Entry Capital
Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry
Capital Securities Certificates shall be exercised only through
the Clearing Agency and shall be limited to those established by
law and agreements between such Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive
Capital Securities Certificates are issued pursuant to Section
5.13, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Capital Securities to such Clearing
Agency Participants.
(e) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
(f) Prior to such time as the restrictions on transfer of
Original Capital Securities imposed by the Securities Act and the
rules and regulations promulgated by the Commission thereunder shall
be terminated as provided in Section 5.4, any transfer of a definitive
Original Capital Security shall be registered upon the Securities
Register only upon receipt by the Property Trustee of such definitive
Original Capital Security accompanied by a duly completed and executed
certificate of transfer in the form attached to Exhibit D and, in the
case of a transfer in another transaction exempt from the registration
requirements of the Securities Act, upon receipt by the Property
Trustee of such certifications, legal opinions or other information as
the Depositor may reasonably request to confirm that such transfer is
exempt from the registration requirements of the Securities Act.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until
Definitive Capital Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Owners to
the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Procedures for Issuance of Definitive Capital
Securities Certificates.
Upon surrender to the Securities Registrar of the
typewritten Capital Securities Certificate or Certificates
representing the Book Entry Capital Securities Certificates by the
Clearing Agency upon occurrence of any of the events described in
Section 5.11(d), accompanied by registration instructions, the
Administrators, or any one of them, shall execute and the Securities
Registrar shall register the Definitive Capital Securities
Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees nor the
Administrators shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Trustees and the Administrators
shall recognize the Holders of the Definitive Capital Securities
Certificates as Securityholders. The Definitive Capital Securities
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Administrators, as evidenced by the execution thereof by the
Administrators or any one of them.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.9, and the Securityholders shall not have
any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as
described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or
similar rights. When issued and delivered to Securityholders against
payment of the purchase price therefor, the Capital Securities will be
fully paid and nonassessable undivided beneficial interests in the
Trust Property. The Holders of the Capital Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of
Delaware.
(b) For so long as any Capital Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 25% in principal amount
of the outstanding Debentures fail to declare the principal of all of
the Debentures to be immediately due and payable, the Holders of at
least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration
such principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided that the
payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, the Holders of a majority in
Liquidation Amount of the Capital Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest
(including any Additional Amounts and/or Special Interest
(as defined in the Indenture), if any, on all of the
Debentures,
(B) the principal of (and premium, if any, on)
any Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel
and the amounts payable to the Debenture Trustee under
Section 7.06 of the Indenture; and
(ii) all Debenture Events of Default, other than the
non-payment of the principal of the Debentures which has become
due solely by such acceleration, have been cured or waived as
provided in Article Six of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of
the Capital Securities may, on behalf of the Holders of all the
Capital Securities, waive any past default under the Indenture, except
a default in the payment of principal or interest (unless such default
has been cured and a sum sufficient to pay all matured installments of
interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof,
by Holders of the Capital Securities all or part of which is
represented by Book-Entry Capital Securities Certificates, a record
date shall be established for determining Holders of Outstanding
Capital Securities entitled to join in such notice, which record date
shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join
in such notice, whether or not such Holders remain Holders after such
record date; provided, that, unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as
the case may be, shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been
canceled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the
provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain
Outstanding, to the fullest extent permitted by law and subject to the
terms of this Trust Agreement and the Indenture, upon a Debenture
Event of Default specified in Section 6.01(a) or 6.01(b) of the
Indenture, any Holder of Capital Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant to
Article VI of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the Capital
Securities of such Holder (a "Direct Action"). Except as set forth in
Section 5.14(b) and this Section 5.14(c), the Holders of Capital
Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14,
8.10 and 10.2 and in the Indenture, and as otherwise required by law,
no Holder of Capital Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Property Trustee shall not (i) direct the time, method or
place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to such Debentures, (ii) waive any past
default which is waivable under the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where
such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a majority in Liquidation
Amount of all Outstanding Capital Securities, provided, however, that
where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each
Holder of Capital Securities. The Property Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders
of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. Subject to Section 8.3, the Property Trustee
shall notify all Holders of the Capital Securities of any notice of
default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Capital Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel to the effect that such action
shall not cause the Trust to be classified as an association taxable
as a corporation or as other than a grantor trust for United States
Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i) any
action that would adversely affect in any material respect the powers,
preferences or special rights of the Capital Securities, whether by
way of amendment to the Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Capital Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a
majority in Liquidation Amount of the Outstanding Capital Securities,
except as otherwise provided in Section 10.2(c). Notwithstanding any
other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would
cause the Trust to be classified as an association taxable as a
corporation or as other than a grantor trust for United States Federal
income tax purposes.
The Holders of a majority in Liquidation Amount of the
Capital Securities at the time Outstanding 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 with respect to such
Capital Securities; provided, however, that, the Property Trustee
shall have the right to decline to follow any such direction if the
Property Trustee being advised by Opinion of Counsel determines that
the action so directed may not lawfully be taken, or if the Property
Trustee in good faith shall determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders of Capital Securities not parties
to such direction, and provided further that nothing in the Trust
Agreement shall impair the right of the Property Trustee to take any
action deemed proper by the Property Trustee and which is not
inconsistent with such direction by such Securityholders.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Capital Securityholders,
stating the time, place and purpose of the meeting, shall be given by
the Property Trustee pursuant to Section 10.8 to each Capital
Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting,
any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may
be held as adjourned without further notice.
SECTION 6.3. Meetings of Capital Securityholders.
No annual meeting of Securityholders is required to be held.
The Property Trustee, however, shall call a meeting of Capital
Securityholders to vote on any matter upon the written request of the
Capital Securityholders of record of at least 25% of the Capital
Securities (based upon their aggregate Liquidation Amount) and the
Administrators or the Property Trustee may, at any time in their
discretion, call a meeting of Capital
Securityholders to vote on any matters as to which Capital
Securityholders are entitled to vote.
Capital Securityholders of record of at least 50% of the
Outstanding Capital Securities (based upon their Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Capital Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Capital Securityholders of record present, in person or by proxy,
holding at least a majority of the Capital Securities (based upon
their Liquidation Amount) held by the Capital Securityholders of
record present, either in person or by proxy, at such meeting shall
constitute the action of the Capital Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each
$1,000 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to
vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder
entitled to vote thereat may vote by proxy, provided that no proxy
shall be voted at any meeting unless it shall have been placed on file
with the Property Trustee, or with such other officer or agent of the
Trust as the Property Trustee may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee.
Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies
so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a
meeting may be taken without a meeting if Securityholders holding more
than a majority of all Outstanding Trust Securities (based upon their
aggregate Liquidation Amount) entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action
in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust Securities
in respect of which a record date is not otherwise provided for in
this Trust Agreement, or for the purpose of any other action, the
Administrators may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of
a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record
for such purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or
instruments are delivered to the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to
Section 8.2) conclusive in favor of the Trustees, if made in the
manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Capital Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the
Trust in reliance thereon, whether or not notation of such action is
made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular
Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Securityholders and the
Administrators or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Administrators under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the
Property Trustee, the records of the Trust shall be open to inspection
by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of
New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing with its
principal place of business in the State of Delaware;
(d) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement have been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and the Delaware
Trustee and do not require any approval of stockholders of the
Property Trustee and the Delaware Trustee and such execution, delivery
and performance will not (i) violate the Charter or By-laws of the
Property Trustee or the Delaware Trustee, or (ii) violate any law,
governmental rule or regulation of the State of New York or the State
of Delaware, as the case may be, governing the banking or, trust
powers of the Property Trustee or the Delaware Trustee (as appropriate
in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee; and
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein
or therein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing
State of New York or State of Delaware law governing the banking or
trust powers of the Property Trustee or the Delaware Trustee, as the
case may be.
Any successor Property Trustee and Delaware Trustee shall
make similar representations and warranties as contained in this
Section 7.1 for the benefit of the Depositor and the Securityholders.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit
of the Securityholders that:
(a) the Trust Securities Certificates issued at the Closing
Date on behalf of the Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the
Administrators pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under
the laws of the State of Delaware or any political subdivision thereof
in connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
THE TRUSTEES AND ADMINISTRATORS
SECTION 8.1. Corporate Property Trustee Required;
Eligibility of Trustees.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property Trustee
shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
(b) There shall at all times be one or more Administrators
hereunder with respect to the Trust Securities, who shall be appointed
by the Holder of Common Securities. Each Administrator shall be
either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind
that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity with its principal place
of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
SECTION 8.2. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall
be as provided by this Trust Agreement and, in the case of the
Property Trustee, by the Trust Indenture Act and no implied covenants
or obligations shall be read into this Trust Agreement against the
Property Trustee. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their
rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them. 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 certificates or opinions furnished to the
Property Trustee and conforming to the requirements of this Trust
Agreement. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release an Administrator or the
Delaware Trustee from liability for his own gross negligence or
willful misconduct. To the extent that, at law or in equity, an
Administrator, or the Delaware Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrator and the Delaware Trustee shall not
be liable to the Trust or any other Trustee or to any Securityholder
for such Administrator's or the Delaware Trustee's good faith reliance
on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and
liabilities of the Administrators and the Delaware Trustee otherwise
existing at law or in equity, are agreed by the Depositor, the
Trustees and the Securityholders to replace such other duties and
liabilities of the Administrators and the Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make
payments in accordance with the terms hereof. Each Securityholder, by
its acceptance of a Trust Security, agrees that it will look solely to
the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable
in respect of any Trust Security or for any other liability in respect
of any Trust Security. This Section 8.2(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed
to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a majority in Liquidation Amount of the Capital Securities
or the Common Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon
the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Trust
Property shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and
the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property
Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor
with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or
misconduct of any Administrator or the Depositor.
SECTION 8.3. Certain Notices.
Within five Business Days after the occurrence of any Event
of Default actually known to an officer of the Property Trustee
assigned to its Corporate Trust Office, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8,
notice of such Event of Default to the Securityholders, the
Administrators and the Depositor, unless such Event of Default shall
have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on
the Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8,
notice of such exercise to the Securityholders, unless such exercise
shall have been revoked.
SECTION 8.4. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.2:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein
or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to
which the Capital Securityholders are entitled to vote under the terms
of this Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the Depositor as
to the course of action to be taken and the Property Trustee shall
take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrators contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate or a certificate
signed by any Administrator;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrators;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court
of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Securityholders, but the Property Trustee may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent or attorney appointed
with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request instructions
from the Holders of the Trust Securities which instructions may only
be given by the Holders of the same proportion in Liquidation Amount
of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are
received, and (iii) shall be protected in acting in accordance with
such instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement; and
(l) the Property Trustee shall not be charged with
knowledge of an Event of Default unless an officer of the Property
Trustee assigned to its Corporate Trust Office
obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from the Depositor, any Trustee
or Administrator or Securityholders.
No provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No permissive
power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.5. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
SECTION 8.6. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust,
in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Section 8.8 and to Section
311 of the Trust Indenture Act and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal
with the Trust with the same rights it would have if it were not a
Trustee or such other agent.
SECTION 8.7. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of
any Trustee, (iii) any officer, director,
shareholder, employee, representative or agent of any Trustee, and
(iv) any employee or agent of the Trust or its Affiliates, (referred
to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred without gross negligence or bad faith 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 of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder; and
(d) to the fullest extent permitted by applicable law, to
advance expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding
which shall be advanced, from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding upon
receipt by the Depositor of (x) a written affirmation by or on behalf
of the Indemnified Person of its or his good faith belief that it or
he has met the standard of conduct set forth in this Section 8.7 and
(y) an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is
not entitled to be indemnified as authorized in the preceding
subsection.
The provisions of this Section 8.7 shall survive the
termination of this Trust Agreement and the resignation or removal of
any Trustee.
No Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.7.
The Depositor, any Administrator and any Trustee (in the
case of the Property Trustee, subject to Section 8.8 hereof) may
engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders
of Trust 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 business of the Trust, shall not be deemed
wrongful or improper. Neither the Depositor, any Administrator nor
any 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 the Depositor, any Administrator or any 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 Trustee may engage or be interested in any
financial or other transaction with the Depositor or any Affiliate of
the Depositor, or may act as depository for, trustee or agent for, or
act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
SECTION 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of conforming to
the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time
be located, the Depositor and the Administrators, except in such
instance as set forth in the following sentence, by agreed action of a
majority of such Administrators, shall have the power to appoint, and
upon the written request of the Administrators, the Depositor shall
for such purpose join with the Administrators in the execution,
delivery, and performance of all instruments and agreements necessary
or proper to appoint one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the
United States or (ii) a legal entity with its principal place of
business in the United States that shall act through one or more
persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(a) The Trust Securities shall be delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall
be exercised, solely by such Trustees and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such co-
trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of
Successor.
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 60 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of the
Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and
be continuing any Trustee may be removed at any time by the Holder of
the Common Securities. If a Debenture Event of Default has occurred
and is continuing, the Property Trustee or the Delaware Trustee, or
both of them, may be removed by Act of the Holders of a majority in
Liquidation Amount of the Capital Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the
Trust). In no event will the Holders of the Capital Securities have
the right to vote to appoint, remove or replace the Administrators,
which voting rights are vested exclusively in the Depositor, as Holder
of the Common Securities.
If any Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office of any
Trustee for any cause, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holder of the Common
Securities, by Act of the Holder of the Common Securities, delivered
to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable
requirements of Section 8.11. If any Trustee shall resign, be removed
or become incapable of acting as Trustee, at a time when a Debenture
Event of Default Exists, the Holders of the Capital Securities, by Act
of the Holders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and each successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrator shall resign, be
removed or become incapable of acting as Administrator, the Holder of
Common Securities by Act of the Holder of Common Securities delivered
to the Administrator shall promptly appoint a successor Administrator
or Administrators and such successor Administrator or Administrators
shall comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the Holder
of the Common Securities or the Holders of the Capital Securities and
accepted appointment in the manner required by Section 8.11, any
Holder who has been a Holder of Trust Securities for at least six
months may, on behalf of himself and all other similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.8
and shall give notice to the Depositor. Each notice shall include the
name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrator or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous
act of remaining Administrators if there are at least two of them
prior to such vacancy or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the
eligibility requirement for Administrators or Delaware Trustee, as the
case may be, set forth in Section 8.1).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant
Trustee shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust.
Upon the execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective to the
extent provided therein and each such successor Relevant Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by
such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee
all such rights, powers and trusts referred to in the preceding
paragraph.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto.
SECTION 8.13. 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 Trust Securities or the property of the
Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions or other amounts
due on the Trust 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 or such other amounts) 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 and other amounts owing and unpaid in respect of the
Trust 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
under Section 8.7.
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 composition affecting the Trust 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.
SECTION 8.14. Reports by Property Trustee.
(a) Not later than January 15 of each year commencing with
January 15, 1998, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the Depositor,
a brief report dated as of the immediately preceding November 15
concerning the Property Trustee and its actions under this Trust
Agreement if and as may be required pursuant to Section 313(a) of the
Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to
Securityholders such other reports concerning the Property Trustee and
its actions under this Trust Agreement as would be required pursuant
to the Trust Indenture Act were this Trust Agreement to be qualified
under the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with any
interdealer quotation system or self-regulatory organization upon
which the Trust Securities are designated for trading, and with the
Depositor. The Depositor will notify the Property Trustee when and as
the Capital Securities become so designated for trading.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if
any) and the compliance certificate required by Section 314(a)(4) of
the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, such compliance
certificate to be delivered annually on or before September 15 of each
year beginning in 1997.
SECTION 8.16. Evidence of Compliance with Conditions
Precedent.
Each of the Depositor and the Administrators on behalf of
the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Trust Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason the
vacancy shall be filled with a Trustee appointed in accordance with
the provisions of Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust.
SECTION 8.18. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a) or mailing any other governmental
filing; and
(b) The Administrators shall have power to delegate from
time to time to such of their number or to the Depositor the doing of
such things and the execution of such instruments either in the name
of the Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this
Trust Agreement, as set forth herein.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically
dissolve on January 15, 2052 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an
"Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the
Depositor at any time to dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law,
distribute Debentures to Securityholders in exchange for the Capital
Securities;
(c) the redemption of all of the Capital Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3. Dissolution.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrators,
including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a),
(b) or (d) of Section 9.2 occurs or upon the Expiration Date, the
Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction
of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like Amount of Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first- class mail, postage prepaid mailed not later than 15
nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding
and any Trust Securities Certificates not surrendered for
exchange will be deemed to represent a Like Amount of Debentures;
and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or if Section 9.4(d) applies receive
a Liquidation Distribution, as the Administrators or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order
to effect the liquidation of the Trust and distribution of the
Debentures to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45
days nor less than 15 days prior to the Liquidation Date) and, either
itself acting as exchange agent or through the appointment of a
separate exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like Amount
of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the exchange
agent for exchange, (iii) the Depositor shall use its reasonable
efforts to have the Debentures designated on or with any interdealer
quotation system or self-regulatory organization as the Capital
Securities are then listed, including PORTAL, (iv) any Trust
Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution Date on
which a Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal
will be made to Holders of Trust Securities Certificates with respect
to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders
to receive Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions
of this Section 9.4, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-
up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the
dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If,
upon any such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on
a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro
rata (determined as aforesaid) with Holders of Capital Securities,
except that, if a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have a priority over the
Common Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
except pursuant to this Article IX. At the request of the Holder of a
majority of the Common Securities, without the consent of the Holders
of the Capital Securities, the Property Trustee or the Delaware
Trustee, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations
of the Trust with respect to the Capital Securities or (b) substitutes
for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so
long as the Successor Securities rank the same as the Capital
Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the
Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Capital Securities (including any
Successor Securities) in any material respect, (v) such successor
entity has a purpose substantially identical to that of the Trust,
(vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an opinion
of counsel from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the
Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (vii) the Depositor owns all
of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at
least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of
100% in Liquidation Amount of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor
trust for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders to
Terminate Trust.
Except to the extent set forth in Section 9.2, the death,
incapacity, dissolution, liquidation, termination or bankruptcy of any
Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this
Trust Agreement, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives, successors or heirs of such Person
or any Securityholder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition or
winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees, and the Holders of a majority of the Common
Securities, without the consent of any Holders of the Capital
Securities, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes
as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to
register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and
the Holders of a majority of the Common Securities with (i) the
consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States Federal income tax
purposes or the Trust's exemption from status of an investment company
under the 1940 Act.
(c) In addition to and notwithstanding any other provision
in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section
6.3 or 6.6 hereof), this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment on or after
such date; notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained
in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an investment company under
the 1940 Act or fail or cease to be classified as a grantor trust for
United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation
on the Depositor.
(f) In the event that any amendment to this Trust Agreement
is made, the Property Trustees or the Administrators shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement
which affects its own rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust
Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the
Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES), PROVIDED THAT THE
IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN CONNECTION
WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security
shall be a day that is not a Business Day, then such payment need not
be made on such date but may be made on the next succeeding day that
is a Business Day (except as otherwise provided in Sections 4.1(a) and
4.2(d)), with the same force and effect as though made on the date
fixed for such payment, and no interest shall accrue thereon for the
period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure
to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except
in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article XI of the Indenture and
pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only
and shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by
any provision of this Trust Agreement is required or permitted to be
given or served to or upon any Securityholder or the Depositor may be
given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such
Securityholder's name and address may appear on the Securities
Register; and (b) in the case of the Common Securityholder or the
Depositor, to The Bear Xxxxxxx Companies, Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx-Xxxxx, Facsimile
No.:(212-272-6227) (until another address is designated by notice to
the Trustees). Such notice, demand or other communication to or upon
a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given
or served to or upon the Trust, the Property Trustee, the Delaware
Trustee or the Administrators shall be given in writing addressed
(until another address is designated by notice to the other parties
hereto) as follows: (a) with respect to the Property Trustee to The
Chase Manhattan Bank 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trustee Administration
Department; (b) with respect to the Delaware Trustee, to Chase
Manhattan Bank Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trustee Administration Department; (c)
with respect to the Administrators, to them at the address above for
notices to the Depositor, marked "Attention: Administrators of Bear
Xxxxxxx Capital Trust I" and (d) with respect to the Trust, c/o The
Bear Xxxxxxx Companies, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Xxxxx Xxxxxxxxx-Xxxxx. Such notice, demand or other
communication to or upon the Trust, the Administrators, the Property
Trustee or the Delaware Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by
the Trust, the Administrators, the Property Trustee or the Delaware
Trustee, as the case may be.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit
of the Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, they
shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy
Law. In the event the Depositor takes action in violation of this
Section 10.9, the Property Trustee agrees, for the benefit of
Securityholders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor
has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions of
this Section 10.9 shall survive the termination of this Trust
Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) This Trust Agreement is intended to be in conformity
with the provisions of he Trust Indenture Act that would be required
to be part of this Trust Agreement were this Trust Agreement to be
qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with the duties imposed under Section 310 through 313 of the Trust
Indenture Act were this Trust Agreement so qualified under the Trust
Indenture Act, such duties shall control. If any provision of this
Trust Agreement modifies or excludes any provision of the Trust
Indenture
Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Trust Agreement as so modified or excluded,
as the case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust Securities as
equity securities representing undivided beneficial interests in the
assets of the Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THE
TRUSTEES, THE ADMINISTRATORS, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This Trust Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original; but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amended
and Restated Trust Agreement of Bear Xxxxxxx Capital Trust I as of the
date first above written.
THE BEAR XXXXXXX COMPANIES INC.
By:/s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer and
Senior Vice President-Finance
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:/s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxx,
as Administrator
/s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxx, Xx.,
as Administrator
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx,
as Administrator
EXHIBIT A
---------
CERTIFICATE OF TRUST
EXHIBIT B
---------
DTC LETTER
EXHIBIT C
---------
COMMON SECURITIES CERTIFICATE
EXHIBIT C
---------
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES ___
CERTIFICATE EVIDENCING FIXED/ADJUSTABLE RATE COMMON SECURITIES
OF
BEAR XXXXXXX CAPITAL TRUST I
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Bear Xxxxxxx Capital Trust I 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 _____________________ ( ) Common
Securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Fixed/Adjustable Rate
Common Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Trust
Agreement (as defined below), the Common Securities are not
transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the Trust
dated as of January 29, 1997, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms
of the Common Securities as set forth therein. The Trust will furnish
a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust 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.
IN WITNESS WHEREOF, one of the Administrators of the Trust
has executed this certificate this ___ day of _____________.
By:
------------------------------
Name;
Administrator
EXHIBIT D
---------
CAPITAL SECURITIES CERTIFICATE
EXHIBIT D
---------
CERTIFICATE NUMBER NUMBER OR CAPITAL SECURITIES [UP TO]*
CUSIP NO.___
CERTIFICATE EVIDENCING FIXED/ADJUSTABLE RATE [EXCHANGE]**
CAPITAL SECURITIES
OF
BEAR XXXXXXX CAPITAL TRUST I
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Registered Holder: Cede & Co.
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (I)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE
CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR
(II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE TRUST
SO REQUESTS) OR (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC") TO BEAR XXXXXXX CAPITAL TRUST
I OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
____________
* Insert in Book-Entry Capital Security Certificate only.
** Insert in Exchange Capital Securities only
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
THE CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF $100,000 OR MORE (AT LEAST 100 CAPITAL SECURITIES).
ANY ATTEMPTED TRANSFER, SALE OR OTHER DISPOSITION OF
CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY TRANSFEREE OF
SUCH A BLOCK OF LESS THAN 100 CAPITAL SECURITIES SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED
TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE
NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
Bear Xxxxxxx Capital Trust I 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
[___________________ ( ) Capital Securities of the
Trust]** [the number of Capital Securities of the Trust
specified in Schedule A hereto]* representing an undivided beneficial
interest in the assets of the Trust and designated the
Fixed/Adjustable Rate Capital Securities of Bear Xxxxxxx Capital Trust
I (liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities
are set forth in, and this certificate and the Capital Securities
represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of January 29, 1997, as the same may be amended
from time to time (the "Trust Agreement"). The Holder is entitled to
the benefits of the Capital Securities Guarantee Agreement entered
into by the Bear Xxxxxxx Companies, Inc., a Delaware corporation, and
The Chase Manhattan Bank as guarantee trustee, dated as of January 29,
1997, as the same may be amended from time to time (the "Guarantee
Agreement"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee Agreement
___________
* Insert in Book-Entry Capital Security Certificate only
** Insert in Definitive Capital Securities Certificates only
to the Holder without charge upon written request to the Trust 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.
IN WITNESS WHEREOF, one of the administrators of the Trust
has executed this certificate this _____ day of ______________.
By:
--------------------------------
Name:
Administrator
SCHEDULE A
Changes to Number of Capital Securities
in Book-entry Security
The initial number of Capital Securities
evidenced by this Book-Entry Capital
Securities Certificate is ___________.
Number of Capital
Securities by which Remaining
this Book-entry Principal
Security Is To Be Amount of
Reduced, and Reason for this Book-entry Notation
Date Reduction Security Made by
---- --------- -------- -------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE B
[IF CAPITAL SECURITY IS AN ORIGINAL CAPITAL SECURITY, INSERT]
FORM OF ASSIGNMENT
For value received hereby
------------------------------------
sell(s), assign(s) and transfer(s) unto
------------------------------
----------------------------------------------------------------------
(Please insert social security or other taxpayer identification number
of assignee.)
the within Capital Securities Certificate and hereby irrevocably
constitutes and appoints attorney to transfer the said
---------------
security on the books of the Trust, with full power of substitution in
the premises.
In connection with any transfer of the within security occurring prior
to the Transfer Restriction Termination Date, the undersigned confirms
that such security is being transferred:
To Bear Xxxxxxx Capital Trust I or a subsidiary thereof; or
Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
Pursuant to or in accordance with another exemption from the
registration requirements of the Securities Act of 1933, as
amended;
and unless the box below is checked, the undersigned confirms that
such security is not being transferred to an "affiliate" of the Trust
as defined in Rule 144 under the Securities Act of 1933, as amended
(an "Affiliate"):
The transferee is an Affiliate of the Trust.
Date:
-------------------
-----------------------------------
-----------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a member
firm of a major stock exchange.
-----------------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond
with the name as written upon the face of this Security in every
particular without alteration or enlargement or any change whatever.
[IF CAPITAL SECURITY IS AN EXCHANGE CAPITAL SECURITY, INSERT]
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Capital Security to:
(Insert assignee's social security or tax
---------------
identification number)
(Insert address and zip code of assignee)
--------------- ------------
--------
and irrevocably appoints
---------------------------------------------
.
agent to transfer this Capital Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:
Signature(s):
--------------------------------------------------
-----------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Capital
Securities Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to S.E.C. Rule 17 Ad-
15.
NYFS04...:\25\22625\0110\2322\AGR1097R.21F
