Exhibit 4.18
S&C Draft of March 26, 1999
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AMENDED AND RESTATED TRUST AGREEMENT
among
CSC HOLDINGS, INC.,
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and the several Holders of the Trust Securities
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Dated as of [ ], 1999
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CSC CAPITAL I
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions......................................................1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name............................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....13
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.13
SECTION 2.4. Issuance of the Capital Securities..............................13
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures....................13
SECTION 2.6. Continuation of Trust...........................................14
SECTION 2.7. Authorization to Enter into Certain Transactions................14
SECTION 2.8. Assets of Trust.................................................18
SECTION 2.9. Title to Trust Property.........................................18
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................18
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................19
SECTION 4.2. Redemption......................................................20
SECTION 4.3. Subordination of Common Securities..............................22
SECTION 4.4. Payment Procedures..............................................23
SECTION 4.5. Withholding Tax.................................................24
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SECTION 4.6. Tax Returns and Reports.........................................24
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust..............24
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions..........24
SECTION 4.9. Liability of the Holder of Common Securities....................25
SECTION 4.10. Other Purchases of Preferred Securities.........................25
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................25
SECTION 5.2. The Securities Certificates.....................................25
SECTION 5.3. Execution and Delivery of Securities Certificates...............26
SECTION 5.4. Book-Entry Capital Securities...................................26
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities
Certificates...................................................28
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates....30
SECTION 5.7. Persons Deemed Holders..........................................30
SECTION 5.8. Access to List of Holders' Names and Addresses..................30
SECTION 5.9. Maintenance of Office or Agency.................................31
SECTION 5.10. Appointment of Paying Agents....................................31
SECTION 5.11. Ownership of Common Securities by Depositor.....................31
SECTION 5.12. Notices to Clearing Agency......................................32
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.....................32
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ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................34
SECTION 6.2. Notice of Meetings..............................................35
SECTION 6.3. Meetings of Holders of the Capital Securities...................35
SECTION 6.4. Voting Rights...................................................36
SECTION 6.5. Proxies, etc....................................................36
SECTION 6.6. Holder Action by Written Consent................................36
SECTION 6.7. Record Date for Voting and Other Purposes.......................37
SECTION 6.8. Acts of Holders.................................................37
SECTION 6.9. Inspection of Records...........................................38
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.............................38
SECTION 7.2. Representations and Warranties of Depositor.....................40
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.............................40
SECTION 8.2. Certain Notices.................................................43
SECTION 8.3. Certain Rights of Property Trustee..............................43
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........45
SECTION 8.5. May Hold Securities.............................................45
SECTION 8.6. Compensation; Indemnity; Fees...................................46
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees and Administrators..........47
SECTION 8.8. Conflicting Interests...........................................48
SECTION 8.9. Co-Trustees and Separate Trustee................................48
SECTION 8.10. Resignation and Removal; Appointment of Successor...............49
SECTION 8.11. Acceptance of Appointment by Successor..........................51
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.....51
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Issuer Trust ...........................................52
SECTION 8.14. Property Trustee May File Proofs of Claim.......................52
SECTION 8.15. Reports by Property Trustee.....................................53
SECTION 8.16. Reports to the Property Trustee.................................53
SECTION 8.17. Evidence of Compliance with Conditions Precedent................54
SECTION 8.18. Number of Issuer Trustees.......................................54
SECTION 8.19. Delegation of Power.............................................54
SECTION 8.20. Appointment of Administrators...................................54
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................55
SECTION 9.2. Early Dissolution...............................................55
SECTION 9.3. Termination.....................................................56
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SECTION 9.4. Liquidation.....................................................56
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust...............................57
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................59
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust Securities......59
SECTION 10.3. Amendment......................................................59
SECTION 10.4. Separability...................................................61
SECTION 10.5. Governing Law..................................................61
SECTION 10.6. Payments Due on Non-Business Day...............................62
SECTION 10.7. Successors.....................................................62
SECTION 10.8. Headings.......................................................62
SECTION 10.9. Reports, Notices and Demands...................................62
SECTION 10.10. Agreement Not to Petition......................................63
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act.........63
SECTION 10.12. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture............................64
Exhibit A Certificate of Trust of CSC I Capital
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Capital Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of [ ], 1999, among
(i) CSC Holdings, Inc., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The Bank of New York, a New York banking
corporation, as property trustee (in such capacity, the "Property Trustee",
(iii) The Bank of New York (Delaware), a Delaware banking corporation, as
Delaware trustee (in such capacity, the "Delaware Trustee") (the Property
Trustee and the Delaware Trustee being referred to collectively as the "Issuer
Trustees"), and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of December __, 1998 (the
"Original Trust Agreement"), and by the execution and filing by the Delaware
Trustee with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on December 9, 1998, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees 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 Issuer
Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Underwriting Agreement, (iii) the acquisition
by the Issuer Trust from the Depositor of all of the right, title and interest
in the Debentures, and (iv) the appointment of the Administrators;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, 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) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or
an Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "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 (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Administrators" means each Person appointed in accordance with Section
8.20 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore created and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Book-Entry Capital Security, the rules and procedures of the
Clearing Agency for such Book-
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Entry Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"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 10.10.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or officers of the Depositor to which authority
to act on behalf of the Board of Directors has been delegated and to be in full
force and effect on the date of such certification, and delivered to the Issuer
Trustees.
"Book-Entry Capital Security" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
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"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Capital Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit E.
"Cedel" means Cedel Bank, societe anonyme (or any successor securities
clearing agency).
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, 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 the Time of Delivery, which date is also the date of
execution and delivery of this Trust Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
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"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Common Securities Default" has the meaning specified in Section 4.3(b).
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal corporate trust office of the Property Trustee located in
the City of New York, which at the time of the execution of this Trust Agreement
is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000;
Attention: Corporate Trust Administration.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture, including any date fixed for redemption pursuant to the
exercise by the Depositor of its optional right to redeem the Debentures prior
to their stated maturity either (i) in whole or in part after a certain date
specified in the applicable prospectus supplement or (ii) in whole but not in
part after the occurrence of a Tax Event or an Investment Company Act Event.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's [ ]% Junior Subordinated Debentures
issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as the
context requires) of (i) Capital Securities Certificates issued as Global
Capital Securities as provided in Section 5.2 or 5.4, and (ii) Capital
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., or any successor statute thereto, in each
case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Delaware
Trustee of the trust heretofore created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
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"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 or any successor thereto.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
successor statute thereto, in each case as amended from time to time.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency), as operated by Xxxxxx Guaranty Trust Company of New
York, Brussels office.
"European Capital Securities" means Capital Securities that are sold to
investors in Europe and settled through Euroclear and Cedel.
"Event of Default" means any one of the following events (whatever the
reason for such event 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 Issuer 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 Issuer 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 Issuer Trustees in this Trust Agreement (other
than those specified 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 Issuer Trustees and to the Depositor
by the Holders of at least 25% in aggregate Liquidation Amount 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
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(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor, in its capacity as holder
of the Common Securities, and the Issuer Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 3.12. of the
Indenture.
"Global Capital Security" means a Capital Securities Certificate
evidencing ownership of Book-Entry Capital Securities.
"Guarantee Agreement" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, as guarantee 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
are 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 Junior Subordinated Indenture, dated as of April 1,
1999, between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Act Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Capital Securities.
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"Issuer Trust" means the Delaware business trust known as "CSC Capital I"
which was formed on December 9, 1998 under the Delaware Business Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate of
Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any 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, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution
is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date of liquidation of the Issuer Trust
pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or "Majority in
Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Issuer Trustees. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"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 canceled by the Property Trustee or
delivered to the Property Trustee 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; 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 that 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, 5.6 and 5.11;
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 Issuer Trustee, any Administrator or any
Affiliate of the Depositor, any Issuer Trustee or any Administrator shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Issuer Trustee or any Administrator shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Capital Securities that a Responsible Officer of such Issuer
Trustee or such Administrator, as the case may be, actually knows to be so owned
shall be so disregarded, and (b) the foregoing shall not apply at any time when
all of the Outstanding Capital Securities are owned by the Depositor, one or
more of the Issuer Trustees, one or more of the Administrators and/or any such
Affiliate. Capital Securities so owned that have been pledged in good faith may
be regarded as Outstanding
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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 Book-Entry
Capital Securities 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 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee in its trust department for the
benefit of the Holders 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 Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, 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.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer", when used with respect to the Property Trustee or
Issuer Trustee, means any officer assigned to the Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Property Trustee
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customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Trust Agreement, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Capital Securities Certificate; and, for
the purposes of this definition, any Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) 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 (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Corporation or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Corporation or original issue discount
accruing on the Junior Subordinated Debentures is not, or within 90 days of the
date of such opinion, will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes, or (iii) the Issuer Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Time of Delivery" has the meaning specified in the Underwriting
Agreement.
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"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits, and (ii) 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 if
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.
"Underwriting Agreement" means the Pricing Agreement, dated as of [ ],
1999, among the Issuer Trust, the Depositor and the Underwriters named therein,
as the same may be amended from time to time and includes the Underwriting
Agreement incorporated therein by reference.
"Vice President," when used with respect to the Depositor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "CSC Capital I", as such name
may be modified from time to time by the Administrators following written notice
to the Holders of Trust Securities and the Issuer Trustees, in which name the
Administrators and the Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and xxx and be sued.
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SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is The Bank
of New York (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxxx 00000;
Attention: Xxxx Xxxxxxx, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Holders, the Depositor,
the Property Trustee and the Administrators. The principal executive office of
the Issuer Trust is 0000 Xxxxxxx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000, Attention:
Secretary.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt from the Depositor in connection
with the Original Trust Agreement of the sum of $[ ], which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
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.
On [ ], 1999, the Depositor, both on its own behalf and on behalf of the
Issuer Trust pursuant to the Original Trust Agreement, executed and delivered
the Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Issuer Trust, shall
manually execute in accordance with Sections 5.3 and 8.9(a) and the Property
Trustee shall deliver to the underwriters, Capital Securities Certificates,
registered in the names requested by the underwriters, evidencing an aggregate
of [ ] Capital Securities having an aggregate Liquidation Amount of $[ ],
against receipt of the aggregate purchase price of such Capital Securities of
$[ ] by the Property Trustee.
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 Issuer Trust, shall execute in accordance
with Sections 5.2 and 5.3 and the Property Trustee shall deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of [ ] Common Securities having an
aggregate Liquidation Amount of $[ ], against receipt of the aggregate
purchase price of such Common Securities of $[ ], to the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor Debentures, registered in
the name of the Property Trustee, not in its individual capacity but solely as
Property Trustee, on behalf of the Issuer Trust and having an aggregate
principal amount equal to $[ ], and, in satisfaction of the purchase price
for such Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of
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$[ ] (being the sum of the amounts delivered to the Property Trustee pursuant to
(i) the second sentence of Section 2.4, and (ii) the first sentence of this
Section 2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in only those activities necessary, or incidental
thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Issuer Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property upon and subject to
the conditions set forth herein for the benefit of the Issuer Trust and the
Holders. The Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Issuer Trust and shall
not be trustees or, to the fullest extent permitted by law, fiduciaries with
respect to the Issuer Trust or the Holders. The Property Trustee shall have the
right and power 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 Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act
and for taking such actions as are required to be taken by a Delaware trustee
under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs
of the Issuer 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 Issuer Trustees and
the Administrators shall have the authority to enter into all transactions and
agreements determined by the Issuer Trustees or the Administrators to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees or the Administrators, as the case may be, under this
Trust Agreement, and to perform all acts in furtherance thereof, including the
following:
(i) Each Administrator shall have the power and authority to act on
behalf of the Issuer Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to execute,
deliver and perform on behalf of the Issuer Trust, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Issuer Trust;
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(C) assisting in the registration of the Capital Securities
under the Securities Act, and under applicable state securities or
blue sky laws and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the
Exchange Act, and with the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Debentures to the Holders in accordance with this Trust
Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) execution of the Trust Securities on behalf of the Trust
in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a
taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, to execute on behalf of the Issuer
Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power
to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as
the Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority
to act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal and any other
payments made in respect of the Debentures and the holding of such
amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(I) 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 Holders (without consideration
of the effect of any such action on any particular Holder); and
(J) any of the duties, liabilities, powers or the authority of
the Administrators set forth in Section 2.7(a)(i)(E), (F) and (J)
herein; 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 Issuer Trust
(or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators, acting on behalf of the Issuer Trust, shall (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that
would reasonably be expected to cause the Issuer Trust to
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become taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes, (iv) take or consent to any action
that would cause the Junior Subordinated Debentures to be treated as other than
indebtedness of the Corporation for United States federal income tax purposes,
(v) incur any indebtedness for borrowed money or issue any other debt, or (vi)
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 Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer 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 and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the Capital
Securities, including any amendments thereto and the taking of any action
necessary or desirable to sell the Capital Securities in a transaction or
a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions, 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 that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trust of actions they must take on
behalf of the Issuer Trust, and the preparation for execution and filing
of any documents to be executed and filed by the Issuer Trust or on behalf
of the Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States in connection
with the sale of the Capital Securities;
(iii) the preparation for filing by the Issuer Trust and execution
on behalf of the Issuer Trust of any 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;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of any
registration statement on Form 8-A relating to Capital Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Capital
Securities; and
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(vi) the taking of 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 Issuer Trustees are authorized and directed to conduct
the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act, and will not be taxable as a
corporation or classified as other than 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 connection, each Administrator, the Property Trustee and the Holders of at
least a Majority in Liquidation Amount of the Common Securities are authorized
to take any action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that such Administrator, the Property Trustee or
Holders of Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the Holders of the Outstanding Capital
Securities. In no event shall the Administrator take any action pursuant to the
preceding sentence or any other provision herein that would constitute
discretionary control over the assets of the Trust for purposes of ss. 3(21) of
ERISA. In no event shall the Administrators or the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or in the interpretation thereof.
SECTION 2.8.Assets of Trust.
The assets of the Issuer 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 in trust for the benefit of the Issuer Trust and the
Holders 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 its agents 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
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the Property Trustee in the Payment Account for the exclusive benefit of the
Holders and for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including any Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from [ ],
1999, and, except as provided in clause (ii) below, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on [ ], 1999. 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 (and without any interest or
other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on the date on which such payment was originally
payable (each date on which distributions are payable in accordance with
this Section 4.1(a), a "Distribution Date").
(ii) In the event (and to the extent) of an Extension Period,
quarterly Distributions on the Capital Securities shall continue to
accumulate but shall be deferred. Any Distributions that would otherwise
become due and payable during such deferral will not become due and
payable until the day after the period ends.
(iii) Distributions shall accumulate in respect of the Capital
Securities at a rate of [ ]% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period less
than a full Distribution period shall be computed
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on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period. Distributions
payable for each full Distribution period will be computed by dividing the
rate per annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iv) 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 Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) 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 at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer 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 to be redeemed,
at such Holder's address appearing in the Security Register. Notwithstanding the
aforementioned sentence, if the redemption results from the acceleration of the
maturity of the Debentures and the Property Trustee cannot reasonably give such
notice of redemption within the prescribed period, then the notice will be given
as soon as practicable. 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 is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined in)
the Indenture together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business Day
prior to the Redemption Date (and if an estimate is provided, a further
notice shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities
affected;
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(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(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,
except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
(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 Issuer 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 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Book-Entry Capital Securities, irrevocably deposit with the Clearing Agency for
such Book-Entry Capital Securities, to the extent available therefor, 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 of the Capital Securities. With respect to Capital Securities that are
not Book-Entry Capital Securities, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent or Paying Agents, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent or Paying Agents irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Capital
Securities 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 on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect
21
of the Trust Securities on or prior to the Redemption Date, but without
interest, and such 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 (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 Issuer Trust or by the Depositor pursuant to the Guarantee
Agreement, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1, from the Redemption Date originally established by
the Issuer 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) 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 pro
rata to the Common Securities and the Capital Securities based upon the relative
Liquidation Amounts of such classes. The particular Capital Securities to be
redeemed shall be selected by the Property Trustee based upon any method of
selection that it deems to be fair and appropriate (which may be by lot),
including any method that involves the redemption of a portion of the aggregate
Liquidation Amount of any particular holder's Capital Securities not more than
60 days prior to the Redemption Date from the Outstanding Capital Securities not
previously called for redemption, provided that so long as the Capital
Securities are in book-entry-only form, such selection shall be made in
accordance with the customary procedures for the Clearing Agency for the Capital
Securities. 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 aggregate Liquidation Amount of
Capital Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), 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, Redemption Date or Liquidation Date any Event of Default shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
22
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) 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 in cash of
such Redemption Price on all Outstanding Capital Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
the Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default, the Holders of
the Common Securities shall have no 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 all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holders of the Common
Securities, and only the Holder of all the Capital Securities will have the
right to direct the Property Trustee to act on their behalf. Notwithstanding the
foregoing, the holders of Common Securities may act with respect to an Event of
Default that results solely from a default in the payment of any amount due and
payable on the Common Securities, or from a default or breach under any covenant
herein made solely for the benefit of the holders of Common Securities (a
"Common Securities Default"), subject to the following conditions. The action of
the Common Securities holders must not adversely affect the interests of the
holders of Capital Securities and no Event of Default (and no event or condition
that after the passage of time or giving of notice would result in an Event of
Default) that is not a Common Securities Default may have occurred and be
continuing.
The Issuer Trust will not make any payment or other distribution in
respect of the Common Securities (including on account of any purchase or other
acquisition) while the Capital Securities are outstanding, other than
Distributions, the Redemption Price and the Liquidation Distribution on the
terms set forth herein.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Capital Securities shall be made at the option of the Issuer Trust, either at
the offices of any Paying Agent or 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. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of all the Common
Securities.
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SECTION 4.5. Withholding Tax.
The Issuer Trust and the Administrators shall comply with all withholding
and backup withholding tax requirements under United States federal, state and
local law. The Issuer Trust shall request, and the Holders shall provide to the
Issuer Trust, such forms or certificates as are necessary to establish an
exemption from withholding and backup withholding tax with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Issuer Trust to assist it in determining the extent of, and in fulfilling,
its withholding and backup withholding tax obligations. The Administrators shall
file required forms with applicable jurisdictions and, unless an exemption from
withholding and backup withholding tax is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Issuer Trust is required to withhold and
pay over any amounts to any authority with respect to Distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Issuer Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION 4.6. 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
Issuer Trust. In this regard, the Administrators shall (a) prepare and file (or
cause to be prepared and filed) all Internal Revenue Service forms and returns
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms and returns
required to be provided by the Issuer Trust. 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.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any Additional Taxes imposed on the Issuer Trust by the
United States or any other taxing authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities (or any
Owner with respect thereto) shall be reduced by the amount of any corresponding
payment such Holder (or
24
Owner) has directly received pursuant to Section 5.8 of the Indenture or Section
5.13 of this Trust Agreement.
SECTION 4.9. Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Corporation (as defined in the Expense Agreement) and agrees that
it shall be subject to all liabilities to which the Corporation may be subject,
and shall make all payments that the Corporation is required to make, under the
terms of the Expense Agreement.
SECTION 4.10 Other Purchases of Preferred Securities.
Subject to applicable law (including United States federal securities
laws), the Issuer Trust may purchase Outstanding Preferred Securities by tender,
in the open market or by private agreement. These purchases may occur at any
time and from time to time other than during an Extension Period.
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in 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 Issuer Trust.
SECTION 5.2. The Securities Certificates.
(a) The Capital Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Securities
Certificates shall be executed on behalf of the Issuer Trust by manual signature
of at least one Administrator. 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 Issuer 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 Securities Certificates or did not hold such offices at
the date of delivery of such Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations
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of a Holder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates may be
issued in whole or in part in the form of one or more Global Capital Securities
registered in the name of DTC, as Clearing Agency, or its nominee and deposited
with DTC or a custodian for DTC for credit by DTC to the respective accounts of
the Owners thereof (or such other accounts as they may direct), provided that
upon deposit all European Trust Securities shall be credited to or through
accounts maintained at DTC by or on behalf of Euroclear or Cedel.
(c) Upon their original issuance, Capital Securities Certificates may be
issued in whole or in part in the form of one or more Definitive Capital
Securities Certificates registered in the name of holders as designated by the
underwriters in a particular offering.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Securities Certificates.
At the Time of Delivery, the Administrators shall cause Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Capital Securities.
(a) Each Global Capital Security issued under this Agreement shall be
registered in the name of the Clearing Agency or a nominee thereof and delivered
to such Clearing Agency or a nominee thereof or custodian therefor, and each
such Global Capital Security shall constitute a single Capital Securities
Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no Global
Capital Security may be exchanged in whole or in part for Capital Securities
Certificates registered, and no transfer of a Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security or a nominee thereof unless (i) the
Clearing Agency advises the Property Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Global Capital Security, and the Property Trustee is unable to
locate a qualified successor, (ii) the Issuer Trust at its option advises the
Depositary in writing that it elects to terminate the book-entry system through
the Clearing Agency, or (iii) an Event of Default has occurred and is continuing
and a holder of Capital Securities notifies the Property Trustee in writing that
it wishes to receive a Definitive Capital Securities Certificate. Upon the
occurrence of any event specified in clause
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(i), (ii) or (iii) above, the Administrators shall notify the Clearing Agency
and instruct the Clearing Agency to notify all Owners of Book-Entry Capital
Securities, the Delaware Trustee and the Administrators of the occurrence of
such event and of the availability of the Definitive Capital Securities
Certificates to Owners of the Capital Securities requesting the same.
(c) If any Global Capital Security is to be exchanged for other Capital
Securities Certificates or canceled in part, or if any other Capital Securities
Certificate is to be exchanged in whole or in part for Book-Entry Capital
Securities represented by a Global Capital Security, then either (i) such Global
Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the aggregate Liquidation Amount represented
by such Global Capital Security shall be reduced, subject to Section 5.2, or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Capital Security to be so exchanged or canceled, or equal
to the Liquidation Amount represented by such other Capital Securities
Certificates to be so exchanged for Book-Entry Capital Securities represented
thereby, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon surrender to the Administrators or the Securities Registrar of the Global
Capital Security or Securities by the Clearing Agency, accompanied by
registration instructions, the Administrators, or any one of them, shall execute
the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency. None of the Securities Registrar, the
Issuer Trustees or the Administrators shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be fully protected
in relying on, such instructions. Upon the issuance of Definitive Capital
Securities Certificates, the Issuer Trustees and Administrators shall recognize
the Holders of the Definitive Capital Securities Certificates as Holders. 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.
(d) Every Capital Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global Capital
Security or any portion thereof, whether pursuant to this Article V or Article
IV or otherwise, shall be executed and delivered in the form of, and shall be, a
Global Capital Security, unless such Capital Securities Certificate is
registered in the name of a Person other than the Clearing Agency for such
Global Capital Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a Global
Capital Security, shall be the Holder of such Global Capital Security for all
purposes under this Agreement and the Global Capital Security, and Owners with
respect to a Global Capital Security shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar and the Property Trustee shall
be entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Global Capital Securities (including the payment of
the Liquidation Amount of and Distributions on the Book-Entry Capital Securities
represented
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thereby and the giving of instructions or directions by Owners of Book-Entry
Capital Securities represented thereby) as the sole Holder of the Book-Entry
Capital Securities represented thereby and shall have no obligations to the
Owners thereof. None of the Property Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Capital Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants, provided that,
solely for the purpose of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this Trust
Agreement, so long as Definitive Capital Security Certificates have not been
issued, the Issuer Trustees may conclusively rely on, and shall be fully
protected in relying on, any written instrument (including a proxy) delivered to
the Property Trustee by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Capital Securities Certificates are issued pursuant to Section
5.4(b), 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, and none of the Depositor, the
Administrators or the Issuer Trustees shall have any responsibility or
obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities
Certificates.
(a) The Property Trustee shall keep or cause to be kept, at its Corporate
Trust Office, a register or registers (the "Securities Register") in which the
registrar and transfer agent with respect to the Trust Securities (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 5.11 in the case of the
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates as herein provided. The Property Trustee is
hereby appointed Securities Registrar for the purpose of registering Capital
Securities Certificates and (subject to Section 5.11) Common Securities
Certificates and transfers and exchanges thereof as provided herein.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrators or any one of them shall execute and deliver to the Property
Trustee, 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 as may be
required by this Trust Agreement dated the date of execution by such
Administrator.
The Securities Registrar shall not be required, (i) to issue, register the
transfer of or exchange any Capital Security during a period beginning at the
opening of business 15 days
28
before the day of selection for redemption of such Capital Securities pursuant
to Article IV and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange any
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Property Trustee 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 Issuer Trust 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.
(b) Notwithstanding any other provision of this Agreement, transfers and
exchanges of Capital Securities Certificates and beneficial interests in a
Global Capital Security of the kinds specified in this Section 5.5(b) shall be
made only in accordance with this Section 5.5(b).
(i) Non-Global Capital Security to Global Capital Security. If the
Holder of a Capital Securities Certificate (other than a Global Capital
Security) wishes at any time to transfer all or any portion of such
Capital Securities Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Global Capital Security,
such transfer may be effected only in accordance with the provisions of
this clause (b)(i) and subject to the Applicable Procedures. Upon receipt
by the Securities Registrar of (A) such Capital Securities Certificate as
provided in Section 5.5(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Global Capital
Security of a specified number of Capital Securities not greater than the
number of Capital Securities represented by such Capital Securities
Certificate be credited to a specified Clearing Agency Participant's
account, then the Securities Registrar shall cancel such Capital
Securities Certificate (and issue a new Capital Securities Certificate in
respect of any untransferred portion thereof) as provided in Section
5.5(a) and increase the aggregate Liquidation Amount of the Global Capital
Security by the Liquidation Amount represented by such Capital Securities
so transferred as provided in Section 5.4(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
Capital Securities Certificate that is not a Global Capital Security may
be transferred, in whole or in part, to a Person who takes delivery in the
form of another Capital Securities Certificate that is not a Global
Capital Security as provided in Section 5.5(a).
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(iii) Exchanges between Global Capital Security and Non-Global
Capital Security. A beneficial interest in a Global Capital Security may
be exchanged for a Capital Securities Certificate that is not a Global
Capital Security as provided in Section 5.4 .
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates.
If (a) any mutilated 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 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 Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, 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 Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees, the Administrators and the Securities Registrar shall
each treat the Person in whose name any Securities Certificate shall be
registered in the Securities Register as the owner of such Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the Administrators and the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware 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.
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SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, 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 Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates the
Corporate Trust Office, Attention: Corporate Trust Administration, as its office
and agency for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or agency.
SECTION 5.10 Appointment of Paying Agents.
The Paying Agent or Paying Agents shall make Distributions to Holders 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 solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove the Paying Agent in its sole discretion. The Paying
Agent shall initially be the Property Trustee. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrators and the Property Trustee. If the Property Trustee shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
shall execute and deliver to the Issuer Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Issuer
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 Holders in trust
for the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all funds remaining unclaimed for
two years to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property
Trustee also in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.11 Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another corporation, or any conveyance, transfer
or
31
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, or (ii) to the
Depositor or an Affiliate of the Depositor in compliance with applicable law
(including the Securities Act, and applicable state securities and blue sky
laws), and in either case only upon an effective assignment and delegation by
the Holder of all the Common Securities to its transferee of all of its rights
and obligations under the Expense Agreement. To the fullest extent permitted by
law, any attempted transfer of the Common Securities other than as set forth in
the immediately preceding sentence shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS
DELEGATION AND ASSIGNMENT OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
SECTION 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Global Capital Security, the Administrators and the Issuer
Trustee shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13 Rights of Holders; Waivers of Past Defaults.
(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 Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer 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 Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. Subject to the provisions of Section 4.8, the Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(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 the right to make such declaration by a notice in writing
to the Property Trustee, the Depositor and the Debenture Trustee.
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At any time after 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, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least 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 recission would not conflict with any judgement or decree of
a court of competent jurisdiction and
(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures that has become
due solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default or Event of Default under the Indenture, except a default or
Event of Default in the payment of principal or interest (and any Additional
Sum) (unless such default or Event of Default has been cured and a sum
sufficient to pay all matured installments of interest and principal (and any
Additional Sum) due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default or Event of Default in respect of a covenant or
provision that 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 any part of the
Capital Securities 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 that 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 that 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
5.13(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
33
Debenture Event of Default specified in Section 5.1(1) or 5.1(2) of the
Indenture, any Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Capital Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.13(b) and this Section 5.13(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.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement 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 Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on behalf
of the Issuer Trust, the Property Trustee shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or execute any trust or power conferred on the Property Trustee with
respect to the Debentures, (ii) waive any past default that may be waived under
Section 5.13 of 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 the 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
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authorized or approved by a vote of the Holders of the Capital Securities,
except by a subsequent vote of the Holders of the Capital Securities. The
Property Trustee shall notify all Holders of the Capital Securities of any
notice of default actually received by a Responsible Officer 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 Issuer
Trustees shall, at the expense of the Depositor, be provided with an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Issuer Trust to be taxable as a corporation, or classified as other
than a grantor trust, or cause the Debentures to be treated as other than
indebtedness of the Issuer Trust, for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer 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 Issuer
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 each Holder of the Capital Securities.
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 Issuer Trust to be taxable as a corporation or classified as other
than a grantor trust, or cause the Debentures to be treated other than
indebtedness of the Issuer Trust, for United States federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Capital Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Capital Securities to vote
on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities and the
Administrators or the Property Trustee may, at any time in their discretion,
call a meeting of the Holders of the Capital Securities to vote on any matters
as to which such Holders are entitled to vote.
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The Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Capital Securities representing at least
a majority of the aggregate Liquidation Amount of the Capital Securities held by
the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Capital Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder 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 Issuer 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 Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or 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 Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without
a meeting if Holders holding at least a Majority in Liquidation Amount of all
Capital Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing. Any action that may be taken
by the Holders of all the Common Securities may be taken if such Holders shall
consent to the action in writing.
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SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders 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 Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to 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 Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees and the Administrators, 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 such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
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 that any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Administrators or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
SECTION 6.9. Inspection of Records.
Upon reasonable prior written notice to the Administrators and the
Property Trustee, the records of the Issuer Trust shall be open to inspection by
any Holder during normal business hours for any purpose reasonably related to
such Holder's interest as a Holder.
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 Holders that:
(a) the Property Trustee is a New York banking 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;
(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;
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(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
has been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee and does 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,
(ii) to the best of each of the Property Trustee's and the Delaware
Trustee's knowledge without any independent investigation, violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of,
any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a
party or by which it is bound, or (iii) violate any applicable law,
governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the banking, trust or general
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;
(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 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 law of the United States or the
State of Delaware governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge without any
independent investigation, threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal that, individually or
in the aggregate, would materially and adversely affect the Issuer Trust
or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
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SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been
duly and validly executed, issued and delivered by the Issuer Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Holders 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 Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust)
under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by
either Issuer Trustee of this Trust Agreement.
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
but subject to Section 8.1(c), no provision of this Trust Agreement shall
require any of the Issuer Trustees or Administrators to expend or risk its or
their own funds or otherwise incur any financial liability in the performance of
any of its or their duties hereunder, or in the exercise of any of its or their
rights or powers, if it or they shall have reasonable grounds for believing that
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees or the Administrators shall be subject to the provisions of this
Section 8.1. Nothing in this Trust Agreement shall be construed to release an
Administrator from liability for his or her own negligent action, its own
negligent failure to act, or his or her own wilful misconduct. To the extent
that, at law or in equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
or Administrator shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's or Administrator'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 Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrators.
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(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 Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13), the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use in the conduct
of his or her own affairs.
(e) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee or the Delaware Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust
Agreement (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be
41
furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Agreement (but need not
confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein).
(ii) 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;
(iii) 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 at least a Majority in Liquidation Amount
of the Capital 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;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(v) 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;
(vi) 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 other Issuer
Trustee, the Administrators or the Depositor; and
(vii) Subject to Section 8.1(c), no provision of this Trust
Agreement shall require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under
the terms of this Trust Agreement or indemnity reasonably satisfactory to
it against such risk or liability is not reasonably assured to it.
(f) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall
42
either Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrators,
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
Holders and the Administrators, unless such exercise shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, 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 (whether in its original or facsimile form) 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, (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 Holders of the Capital Securities are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting the Depositor's
opinion 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 deem advisable and in the best interests of the
Holders, in which event the Property
43
Trustee shall have no liability except for its own bad faith, negligence
or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrator contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrator and setting forth such direction or act;
(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 re-registration thereof;
(f) the Property Trustee may consult with counsel of its own
selection (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 Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request
or direction; provided that, nothing contained in this Section 8.3(g)
shall be taken to relieve the Property Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Trust Agreement;
(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 Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit at
the expense of the Depositor and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(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, attorneys, custodians or nominees, provided that the Property
Trustee shall be responsible for its
44
own negligence, bad faith or wilful misconduct with respect to selection
of any agent, attorney, custodian or nominee appointed 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 (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (iii) shall be fully protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including legal fees
and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee or Administrator 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 such Person 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 any Issuer Trustee or Administrator
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Issuer Trust, and the Issuer Trustees and the
Administrators do not assume any responsibility for their correctness. The
Issuer Trustees and the Administrators shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
The Administrators, any Issuer Trustee or any other agent of any Issuer
Trustee or the Issuer Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13,
and except as provided in the definition of the
45
term "Outstanding" in Article I, may otherwise deal with the Issuer Trust with
the same rights it would have if it were not an Administrator, Issuer Trustee or
such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time
such reasonable compensation for all services rendered by them hereunder
as may be agreed upon from time to time in writing by the Depositor and
such Issuer Trustee or Paying Agent, as the case may be, from time to time
(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 each
Issuer Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by each Issuer Trustee and Paying Agent in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to fully
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) each Paying Agent, (iv) any Affiliate of any Issuer
Trustee, (v) any officer, director, shareholder, employee, representative
or agent of any Issuer Trustee, and (vi) any employee or agent of the
Issuer Trust (referred to herein as an "Indemnified Person") from and
against any and all loss, damage, liability, tax (other than income,
franchise or other taxes imposed on amounts paid pursuant to (a) or (b)
hereof), penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation
or termination of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Issuer
Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence, bad faith or wilful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
46
The Depositor, any Administrator, any Issuer Trustee and any Paying Agent
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 Issuer Trust, and the Issuer 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 Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor, any
Administrator, any Paying Agent nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Depositor, any Administrator, any
Issuer Trustee or any Paying Agent 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 Issuer Trustee or
Paying Agent 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.
In the event that the Property Trustee is also acting as Paying Agent or
Securities Registrar hereunder, the rights and protections afforded to the
Property Trustee pursuant to this Article VIII shall also be afforded to such
Paying Agent or Securities Registrar.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees and Administrators.
(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 a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and that has at the time of such appointment 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
8.7 and to the extent permitted by the Trust Indenture Act, 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 8.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder with
respect to the Trust 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
47
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 and that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) 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.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Property Trustee shall have power to appoint, and
upon the written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee 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 8.9. Any co-trustee
or separate trustee appointed pursuant to this Section 8.9 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 executed by one or more
Administrators, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers,
48
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 Property Trustee specified hereunder shall be exercised
solely by the Property Trustee 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 8.9, 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 resigning or removed
may be appointed in the manner provided in this Section 8.9.
(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 Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
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Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders and by
appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant Trustee on a form
provided by the Administrators, and selecting the Person who agrees to the
lowest expenses and charges. If no Person agrees to serve as successor Relevant
Trustee, the Relevant Trustee may petition at the expense of the Depositor any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and, in the case of the Property Trustee, on behalf of the Issuer
Trust) (i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (d) of the definition thereof with respect to the
Relevant Trustee), or (ii) if a Debenture Event of Default shall have occurred
and be continuing at any time.
If a resigning Issuer Trustee shall fail to appoint a successor, or if an
Issuer Trustee shall be removed or become incapable of acting as Issuer Trustee,
or if a vacancy shall occur in the office of any Issuer Trustee for any cause,
the Holders of the Capital Securities, by Act of the Holders of not less than
25% in aggregate Liquidation Amount of the Capital Securities then Outstanding
delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or
Trustees, and such successor Issuer Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holders of the Capital Securities and accepted appointment
in the manner required by Section 8.11, any Holder, on behalf of such Holder and
all others similarly situated, or any other Issuer Trustee, may petition at the
expense of the Depositor 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 an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and to the Administrators. 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, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
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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 with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall (after being paid all amounts due
it and its agents and counsel) 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 Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12 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 that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
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SECTION 8.13 Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
SECTION 8.14 Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the 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.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the 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.
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SECTION 8.15 Reports by Property Trustee.
(a) Not later than May 1 of each year commencing with May 1, 2000, the
Property Trustee shall transmit to all Holders in accordance with Section 10.9,
and to the Depositor, a brief report, dated as of the immediately preceding
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section,
a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor.
SECTION 8.16 Reports to the Property Trustee.
Each of the Depositor and the Administrators on behalf of the Issuer 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) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. The Depositor and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
of the terms and covenants applicable to such Person hereunder.
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SECTION 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators 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 8.18 Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two, provided that the Property
Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
annul, dissolve or terminate the Issuer Trust.
SECTION 8.19 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),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer 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.
SECTION 8.20 Appointment of Administrators.
(a) The Administrators shall initially be [ ] and [ ], and their
successors shall be appointed by the Holders of a Majority in Liquidation Amount
of the Common Securities and may resign or be removed by the Holders of a
Majority in Liquidation Amount of the Common Securities at any time. Upon any
resignation or removal, the Depositor shall appoint a successor Administrator.
Each Administrator shall sign an agreement agreeing to comply with the terms of
this Trust Agreement. If at any time there is no Administrator, the Property
Trustee or any Holder who has been a Holder of Trust Securities for at least six
months
54
may petition any court of competent jurisdiction for the appointment of one or
more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 8.20, the Administrators in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrators and shall discharge all the duties imposed
upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrator who is a natural person dies or becomes, in the
opinion of the Holder of a Majority in Liquidation Amount the Common Securities,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the unanimous act of the remaining Administrators,
if there were at least two of them prior to such vacancy, and by the Depositor,
if there were not two such Administrators immediately prior to such vacancy
(with the successor being a Person who satisfies the eligibility requirement for
Administrators set forth in Section 8.7).
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve,
and its affairs be wound up, on [55 years from the date of formation] (the
"Expiration Date"), and the Trust Property shall be distributed in accordance
with Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early Dissolution
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the
Holder of the Common Securities, unless the Depositor shall transfer the
Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital
Securities (which direction is optional and wholly within the discretion
of the Holder of the Common Securities);
55
(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrators and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Issuer Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2; (b) the
payment of any expenses owed by the Issuer Trust; (c) the discharge of all
administrative duties of the Administrators, including the performance of any
tax reporting obligations with respect to the Issuer Trust or the Holders; and
(d) the filing by either of the Issuer Trustees (each of whom is authorized
hereby to file such certificate) of a certificate of cancellation of the Issuer
Trust in the Office of the Secretary of State of the State of Delaware.
SECTION 9.4. Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder 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 less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such 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 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 Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the Property
Trustee (after consultation with the Administrators) shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures to Holders,
the Property Trustee, either itself
56
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish a record date for such distribution (which shall be the
15th day (whether or not a business day) prior to the Liquidation Date) and,
establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding 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 Securities Certificates, upon surrender of such Certificates to the exchange
agent for exchange, (iii) Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures bearing accrued
and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such 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 Securities Certificates with
respect to such Debentures) and (iv) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive Debentures
upon surrender of Securities Certificates.
(d) If, 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, or if an Early
Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution of the Issuer Trust, Holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Issuer 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, the Liquidation Distribution can be paid only in part
because the Issuer 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 Issuer 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 pro rata (determined as aforesaid) with Holders of all
Securities, except that, if an Event of Default has occurred and is continuing,
the Capital Securities shall have a priority over the Common Securities as
provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer 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 corporation or other body, except pursuant
to this Article IX. At the request of the Holders of the Common Securities and
without the consent of any Holder of the Capital Securities or any Issuer
Trustee or Administrator, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be
57
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 Issuer 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 have the same priority as the Capital Securities with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold 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
that then assigns a rating to the Capital Securities, (iv) the Successor
Securities are listed, or any Successor Securities will be listed upon notice of
issuance, on any national securities exchange or other organization on which the
Capital Securities are then listed, if any, (v) 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, (vi)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company
Act, and (viii) the Depositor or its permitted transferee owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer Trust
shall not, except with the consent of holders of all 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 entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes or cause the Junior
Subordinated Debentures or any security succeeding such Debentures to be treated
as other than indebtedness of the Corporation for United States federal income
tax purposes unless Issuer Trust first obtains the consent of all Holders of
Outstanding Capital Securities.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2 Agreed Tax Treatment of Issuer Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Issuer Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including but not limited to
all payments and proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in the Trust Property (and payments and proceeds
therefrom, respectively) for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted to further
this intention and agreement of the parties.
SECTION 10.3 Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee and the Holder of all the Common Securities, without the consent of any
Holder of the Capital Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that 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 Issuer Trust will not be taxable as a corporation
or will be classified as other than a grantor trust for United States federal
income tax purposes at all times that any Trust Securities are Outstanding or to
ensure that the Junior Subordinated Debentures are treated as indebtedness of
the Corporation for United States federal income tax purposes, or to ensure that
the Issuer Trust will not be required to register as an "investment company"
under the Investment Company Act; provided, however, that in the case of either
clauses (i) or (ii) such action shall not adversely affect in any material
respect the interests of any Holder and does not become effective until notice
of the amendment is given to the Holders of Outstanding Capital Securities.
59
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Property Trustee, the Delaware Trustee and
the Holder of all of the Common Securities and with (i) the consent of Holders
of at least a Majority in Liquidation Amount of the Capital Securities, and (ii)
receipt by the Issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees or the
Administrators in accordance with such amendment will not cause the Issuer Trust
to be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes or affect the treatment of the Junior
Subordinated Debentures as indebtedness of the Corporation for United States
federal income tax purposes or affect the Issuer Trust's exemption from status
as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States federal income tax purposes or that would cause
the Junior Subordinated Debentures to fail or cease to be treated as
indebtedness of the Corporation for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrators.
(f) If any amendment to this Trust Agreement is made, the Administrators
or the Property Trustee 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 that affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be provided with an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement and all conditions precedent herein provided for
relating to such action have been met.
60
SECTION 10.4 Separability.
If any provision in this Trust Agreement or in the 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 10.5 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS, REMEDIES AND OBLIGATIONS SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO ANY OF THE AFOREMENTIONED PARTIES OR THIS TRUST
AGREEMENT OR THE TRUST SECURITIES ANY PROVISION OF THE LAWS (STATUTORY OR
COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY
COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE
FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT
OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR
DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO
TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR
LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
ISSUER TRUST.
61
SECTION 10.6 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 Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION 10.7 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust, the Administrators and any
Issuer 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 VIII 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 10.8 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.9 Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the
Common Securities or the Depositor, to CSC Holdings, Inc., 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: Secretary, facsimile no.: [ ], or to
such other address as may be specified in a written notice by the Holder of all
the Common Securities or the Depositor, as the case may be, to the Property
Trustee. Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission. Such notice, demand or other communication to
or upon the Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer, the Property Trustee, the Delaware Trustee, the Administrators or the
Trust shall be given in writing by deposit thereof, first-class postage prepaid,
in the U.S. mail, hand delivery or facsimile
62
transmission, addressed to such Person as follows: (a) with respect to the
Property Trustee to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention: Corporate Trust Administration, facsimile no.:
(000) 000-0000; (b) with respect to the Delaware Trustee, to The Bank of New
York (Delaware), [ ], Attention: [ ]; (c) with respect
to the Administrators, to them at the address above for notices to the
Depositor, marked "Attention: Administrators of CSC Capital I"; and (d) with
respect to the Issuer Trust, to its principal office specified in Section 2.1,
with a copy to the Property Trustee. Such notice, demand or other communication
to or upon the Issuer Trust, the Property Trustee or the Administrators shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee or such Administrator.
SECTION 10.10. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
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 estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions of the Trust Indenture
Act.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed 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.
63
(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 Issuer Trust.
SECTION 10.12. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS, THE TAX
TREATMENT PROVISION AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND
SUCH OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
64
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
--------------------------------------
Name:
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee and not
its individual capacity
By:
--------------------------------------
Name:
Title: Vice President
Exhibit A
CERTIFICATE OF TRUST
OF
CSC CAPITAL I
This Certificate of Trust is being executed as of [ ], 199[ ] for
the purposes of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C. Section 3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. NAME. The name of the business trust is CSC Capital I (the
"Trust").
2. DELAWARE TRUSTEE. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section 3807
of the Act are as follows:
The Bank of New York (Delaware)
[ ]
[ ]
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, as trustee of the Trust, has
duly executed this Certificate of Trust as of the day and year first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as Delaware Trustee
By:
--------------------------------------
Name:
Title:
A-1
Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
[ ] __, 1999
The Depository Trust Company,
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Attention: General Counsel's Office
Re: CSC Capital I
___% Capital Securities, Series I
CUSIP No.
---------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
book-entry-only portion of the ____% Capital Securities, Series I (the "Capital
Securities"), of CSC Capital I, a statutory business trust formed under the laws
of the State of Delaware (the "Issuer"), governed by the Amended and Restated
Trust Agreement, dated as of [ ] __, 1999 (the "Amended and Restated Trust
Agreement"), between CSC Holdings, Inc. (the "Corporation"), as Depositor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee and Several Holders as defined therein. The payment of
distributions on the Capital Securities and payments due upon liquidation of the
Issuer or redemption of the Capital Securities, to the extent the Issuer has
funds available for the payment thereof, are guaranteed by the Corporation to
the extent set forth in a Guarantee Agreement, dated as of [ ] __, 1999,
between the Corporation and The Bank of New York, as Guarantee Trustee with
respect to the Capital Securities. The Corporation and the Issuer propose to
sell the Capital Securities to the Underwriters (the "Underwriters") pursuant to
a Pricing Agreement, dated as of [ ] __, 1999, by and among the Underwriters,
the Issuer and the Corporation, and the Underwriting Agreement, dated as of [ ]
__, 1999, by and among the Underwriters, the Issuer and the Corporation, and the
Underwriters wish to take delivery of the Capital Securities through DTC. The
Bank of New York is acting as transfer agent and registrar with respect to the
Capital Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Capital Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Capital Securities, the Issuer and the Transfer Agent and Registrar make the
following representations to DTC:
B-1
1. Prior to the closing of the sale of the Capital Securities to the
Underwriters on [ ] __, 1999, there shall be deposited with, or held by the
Transfer Agent and Registrar as custodian for, DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of 20,000,000 Capital Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders (with no provision for revocation of consents or votes
by subsequent holders) of the Capital Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Series A Capital Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice of such event as soon
as possible but, at least 5 business days prior to the effective date of such
event.
4. In the event of any distribution on, or an offering or issuance
of rights with respect to, the Capital Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Capital Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Capital Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a
B-2
method to verify subsequently the use of such means and the timeliness of such
notice.) The Publication Date shall be not less than 30 calendar days nor more
than 60 calendar days prior to the payment of any such distribution or any such
offering or issuance of rights with respect to the Capital Securities. After
establishing the amount of payment to be made on the Capital Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend Department
of such payment 5 business days prior to payment date. Notices to DTC's Dividend
Department by telecopy shall be sent to (000) 000-0000. Such notices by mail or
by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Capital
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (000) 000-0000 or (000) 000-0000,
and receipt of such notice shall be confirmed by telephoning (000) 000-0000.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
6. In the event of any invitation to tender the Capital Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes), shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (000) 000-0000 or (000) 000-0000 and
receipt of such notice shall be confirmed by telephoning (000) 000-0000, or by
mail or any other means to:
B-3
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Capital Securities and the accompanying
designation of the Capital Securities, which, as of the date of this letter, is
"CSC Capital I, ___% Capital Securities. Series I".
8. Distribution payments or other cash payments with respect to the
Capital Securities shall be governed by DTC's current Principal and Income
Payments Rider, a copy of which is attached hereto as Annex I. For purposes of
this letter, the term "Agent" used in Annex I shall be deemed to refer to The
Bank of New York or any successor Property Trustee under the Amended and
Restated Trust Agreement.
9. DTC may direct the Issuer and the Transfer Agent and Registrar to
use any other telecopy number or address of DTC as the number or address to
which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Capital Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Capital Securities at any time by giving reasonable prior written
notice to the Issuer and the Transfer Agent and Registrar (at which time DTC
will confirm with the Issuer or the Transfer Agent and Registrar the aggregate
number of Capital Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Capital Securities, make available one or more
separate global certificates evidencing Capital Securities to any Participant
having Capital Securities credited to its DTC account, or issue definitive
Capital Securities to the beneficial holders thereof, and in any such case, DTC
agrees to cooperate fully with the Issuer and the Transfer Agent and Registrar
and to return the Global Certificate, duly endorsed for transfer as directed by
the Issuer or the Transfer Agent and Registrar, together with any other
documents of transfer reasonably requested by the Issuer or the Transfer Agent
and Registrar.
B-4
12. In the event that the Issuer determines that beneficial owners
of Capital Securities shall be able to obtain definitive Capital Securities, the
Issuer or the Transfer Agent and Registrar shall notify DTC of the availability
of certificates. In such event, the Issuer or the Transfer Agent and Registrar
shall issue, transfer and exchange certificates in appropriate amounts, as
required by DTC and others, and DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Xxxxxxxxx.
00. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
B-5
Nothing herein shall be deemed to require the Transfer Agent and Registrar
to advance funds on behalf of CSC Capital Trust I.
Very truly yours,
CSC Capital I
(As Issuer)
By:
-----------------------------
Administrator
THE BANK OF NEW YORK
(As Transfer Agent and Registrar)
By:
-----------------------------
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
-----------------------------
Authorized Officer
B-6
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN
AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION WITH A
SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE EXPENSE AGREEMENT
REFERRED TO THEREIN
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
CSC Capital I
___% Common Securities
(liquidation amount $25 per Common Security)
CSC Capital I, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF HOLDER]
(the "Holder") is the registered owner of common securities of the
Issuer Trust representing undivided common beneficial interests in the assets of
the Issuer Trust and designated the ___% Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). Except in accordance with
Section 5.11 of the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof other than in accordance
therewith 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 Issuer Trust, dated as of [ ],
1999, as the same may be amended from time to time (the "Trust Agreement"),
among CSC Holdings, Inc., as Depositor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the Holders
of Trust Securities, including the designation of the terms of the Common
Securities as set forth therein. The Issuer Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Issuer
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
C-1
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this __ day of [ ], 1999.
CSC CAPITAL I
By:
-----------------------------
Name:
Administrator
C-2
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], 1999, between
CSC Holdings, Inc., a New York corporation, as holder of the Common Securities
and issuer of Debentures (the "Corporation"), and CSC Capital I, a Delaware
business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Corporation and to issue
and sell ____% Capital Securities (the "Capital Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement, dated as of [ ], 1999, among CSC Holdings, Inc.,
as Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Holders of Trust Securities, as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Corporation will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation. The Corporation hereby agrees
to assume any and all Obligations (as hereinafter defined) of the Issuer Trust
and, in the event any such Obligation is not so assumed, subject to the terms
and conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities (but not
including liabilities relating to taxes) of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation
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and shall rank subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) of the Corporation to the extent and
in the manner set forth in the Indenture with respect to the Debentures, and the
provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Corporation hereunder. The obligations of the Corporation
hereunder do not constitute Senior Indebtedness (as defined in the Indenture) of
the Corporation.
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which the Debentures shall have been distributed to the Holders of
the Trust Securities as provided in Article IX of the Trust Agreement; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Capital Securities
or any Beneficiary must restore payment of any sums paid under the Capital
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by the Corporation and The Bank of New York, as guarantee trustee, or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Trust in accordance with the
terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happening of any of the
foregoing.
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SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Issuer Trust or any other
person or entity before proceeding against the Corporation.
SECTION 1.7. Subrogation. The Corporation shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Common Securities, this Agreement shall be assigned and delegated by the
Corporation to its successor with such transfer without any action by either
party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed
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given when mailed or upon receipt of an answer-back, if sent by telex):
CSC Capital I
x/x Xxx Xxxx xx Xxx Xxxx
[ ]
[ ]
[ ]
Facsimile No.: [ ]
Attention: Corporate Trust and Agency Services
With a copy to:
CSC Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No.: ______________
Attention: Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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THIS AGREEMENT is executed as of the day and year first above written.
CSC HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
CSC CAPITAL I
By:
--------------------------------
Name:
Title: Administrator
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Exhibit E
[FORM OF CAPITAL SECURITIES CERTIFICATE]
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A GLOBAL
CAPITAL SECURITY, INSERT--This Capital Securities Certificate is a Global
Capital Security within the meaning of the Trust Agreement hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Capital Securities Certificate is exchangeable for Capital Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, except in the limited circumstances described in the
Trust Agreement.
Unless this Capital Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to CSC Capital I or its agent for registration of transfer, exchange or payment,
and any Capital Security Certificate issued is registered in the name of Cede &
Co. or such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
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Certificate Number Number of Capital Securities
CAI-
CUSIP NO.
---------------
Certificate Evidencing Capital Securities
of
CSC Capital I
____% Capital Securities, Series I
(liquidation amount $25 per Capital Security)
CSC Capital I, a statutory business trust formed under the laws of the State of
Delaware (the "Issuer Trust"), hereby certifies that ____________ (the "Holder")
is the registered owner of___________________( )__ Capital Securities of the
Trust representing an undivided preferred beneficial interest in the assets of
the Trust and designated the CSC Capital __ ____% Capital Securities, Series I
(liquidation amount $25 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Issuer
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
5.5 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
Issuer Trust, dated as of [ ], 1999, as the same may be amended from time to
time (the "Trust Agreement"), among CSC Holdings, Inc., as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Holders of Trust Securities, including the designation of the
terms of the Capital Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement entered into by CSC Holdings, Inc., a
Delaware corporation, and The Bank of New York, as Guarantee Trustee, dated as
of [ ], 1999 (the "Guarantee Agreement"), to the extent provided therein. The
Trust will furnish a copy of the Issuer Trust Agreement and the Guarantee
Agreement to the Holder without charge upon written request to the Property
Trustee at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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This Capital Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Capital Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this __ day of [ ], 1999.
CSC CAPITAL
By:
--------------------------------
Name:
Administrator
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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 Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ___________________________________________________________________
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
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 17Ad-15.
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