Draft of July 29, 1997
TRUST AGREEMENT
CONSTITUTING
FIRSTPLUS FINANCIAL, INC.
MANDATORY EXCHANGE TRUST
Dated as of July 29, 1997
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . 1
ARTICLE II TRUST DECLARATION; PURPOSES,
POWERS AND DUTIES OF THE TRUSTEES;
ADMINISTRATION . . . . . . . . . . . . 6
SECTION 2.1 Declaration of Trust; Purposes of
the Trust . . . . . . . . . . . . 6
SECTION 2.2 General Powers and Duties of the
Trustees . . . . . . . . . . . . . 7
SECTION 2.3 Portfolio Acquisition . . . . . . 9
SECTION 2.4 Portfolio Administration . . . . . 9
SECTION 2.5 Manner of Sales . . . . . . . . . 12
SECTION 2.6 Limitations on Trustees' Powers . 13
ARTICLE III ACCOUNTS AND PAYMENTS . . . . . . . . . 14
SECTION 3.1 The Trust Account . . . . . . . . 14
SECTION 3.2 Payment of Fees and Expenses . . . 14
SECTION 3.3 Distributions to Holders . . . . . 14
SECTION 3.4 Segregation . . . . . . . . . . . 14
SECTION 3.5 Investments . . . . . . . . . . . 14
ARTICLE IV REDEMPTION . . . . . . . . . . . . . . 15
SECTION 4.1 Redemption . . . . . . . . . . . . 15
ARTICLE V ISSUANCE OF CERTIFICATES; REGISTRY;
TRANSFER OF TIMES . . . . . . . . . . . 15
SECTION 5.1 Form of Certificate . . . . . . . 15
SECTION 5.2 Transfer of Times; Issuance,
Transfer and Interchange of
Certificates . . . . . . . . . . . 16
SECTION 5.3 Replacement of Certificates . . . 17
ARTICLE VI ISSUANCE OF THE CONTRACT . . . . . . . 18
SECTION 6.1 Execution of the Contract . . . . 18
ARTICLE VII TRUSTEES . . . . . . . . . . . . . . . 18
SECTION 7.1 Trustees . . . . . . . . . . . . . 18
SECTION 7.2 Vacancies . . . . . . . . . . . . 18
SECTION 7.3 Powers . . . . . . . . . . . . . . 19
SECTION 7.4 Meetings . . . . . . . . . . . . . 20
SECTION 7.5 Resignation and Removal . . . . . 20
SECTION 7.6 Liability . . . . . . . . . . . . 20
SECTION 7.7 Compensation . . . . . . . . . . . 21
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . 21
SECTION 8.1 Meetings of Holders . . . . . . . 21
SECTION 8.2 Books and Records; Reports . . . . 22
SECTION 8.3 Termination . . . . . . . . . . . 23
SECTION 8.4 Amendment and Waiver . . . . . . . 24
SECTION 8.5 Accountants . . . . . . . . . . . 26
SECTION 8.6 Nature of Holder's Interest . . . 27
SECTION 8.7 Delaware Law to Govern . . . . . . 27
SECTION 8.8 Notices . . . . . . . . . . . . . 28
SECTION 8.9 Severability . . . . . . . . . . . 28
SECTION 8.10 Counterparts . . . . . . . . . . . 28
TRUST AGREEMENT
This Trust Agreement, dated as of July __, 1997
(the "Trust Agreement"), by and between Bear, Xxxxxxx &
Co. Inc., as sponsor (the "Sponsor"), and
________________,__________________ and _______________
as trustees (the "Trustees"), constituting the FirstPlus
Financial, Inc. Mandatory Common Exchange Trust (the
"Trust") .
W I T N E S S E T H:
WHEREAS, Xxxxxx X. Xxxxx, as sole trustee, had
previously filed in the State of Delaware a Certificate
of Trust dated October 4, 1996 (the "Trust Certificate"),
creating Mandatory Common Exchange Trust; and
WHEREAS, the parties hereto desire to create
the TIMES Trust Agreement;
NOW, THEREFORE, the parties hereto agree to the
provisions set forth herein.
ARTICLE I
DEFINITIONS
Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings
listed below. Any reference to any agreement shall be a
reference to such agreement as supplemented or amended
from time to time.
"ACCELERATION AMOUNT NOTICE" - An Acceleration
Amount Notice as defined in the Contract.
"ACCELERATION VALUE" - The Acceleration Value
as defined in the Contract.
"ADMINISTRATION AGREEMENT" - The Administration
Agreement, dated as of the date hereof, between the
Administrator and the Trustees, and any substitute
agreement therefor entered into pursuant to Section
2.2(a) hereof.
"ADMINISTRATOR" - The [ ] or its
successor as permitted under [Section 6.1] of the
Administration Agreement or appointed pursuant to Section
2.2(a) hereof.
"AGGREGATE ACCELERATION VALUE" - The Aggregate
Acceleration Value as defined in the Contract.
"BUSINESS DAY" - A day on which the American
Stock Exchange, Inc. is open for trading that is not a
day on which banks in The City of New York are authorized
or obligated by law to close.
"CASH SETTLEMENT ALTERNATIVE" - The Cash
Settlement Alternative as defined in the Contract.
"CERTIFICATE" - Any certificate evidencing the
ownership of TIMES substantially in the form of Exhibit A
hereto.
"CODE" - The Internal Revenue Code of 1986, as
amended from time to time; each reference herein to any
section of the Code or any regulation thereunder shall
constitute a reference to any successor provision
thereto.
"COLLATERAL AGENT" - The [ ] or its
successor as permitted under the Collateral Agreement.
"COLLATERAL AGREEMENT" - The Collateral
Agreement between the Collateral Agent and the Seller,
securing the Seller's obligations under the Contract,
substantially in the form of Exhibit B hereto.
"COLLATERAL EVENT OF DEFAULT" - A Collateral
Event of Default as defined in the Contract.
"COMMENCEMENT DATE" - The day on which the
Underwriting Agreement is executed.
"COMMISSION" - The United States Securities and
Exchange Commission.
"COMMON STOCK" - Common Stock, no par value, of
FirstPlus Financial, Inc.
"COMPANY" - FirstPlus Financial, Inc., a
[ ] corporation.
"CONTRACT" - The forward purchase contract
entered into by the Trustees, the Seller and the other
parties thereto, substantially in the form of Exhibit C
hereto.
"CUSTODIAN" - [ ] or its successor
as permitted under [paragraph 11] of the Custodian
Agreement or appointed pursuant to Section 2.2(a) hereof.
"CUSTODIAN AGREEMENT" - The Custodian
Agreement, dated as of the date hereof, between the
Custodian and the Trustees, and any substitute agreement
therefor entered into pursuant to Section 2.2(a) hereof.
"DEPOSITARY" - The Depository Trust Company, or
any successor thereto.
"DISTRIBUTION DATE" - Each ________, ________,
________ and ________ of each year commencing ________,
1997, to and including ________ __, ____ or if any such
date is not a Business Day, then the first Business Day
thereafter.
"EXCESS PURCHASE PAYMENT" - Excess Purchase
Payment as defined under the Contract.
"EXCHANGE DATE" - ________ __, ____.
"EXCHANGE RATE" - The Exchange Rate as defined
in the Contract.
"FIRM PURCHASE PRICE" - The Firm Purchase Price
as defined in the Contract.
"FIRST TIME OF DELIVERY" - The First Time of
Delivery as defined in the Underwriting Agreement.
"HOLDER" - The registered owner of any TIMES as
recorded on the books of the Paying Agent.
"INDEPENDENT DEALERS" - Independent Dealers as
defined in the Contract.
"INDEMNITY AGREEMENT" - The Fund Indemnity
Agreement dated as of the date hereof between the
Trustees and the Sponsor substantially in the form of
Exhibit D hereto.
"INVESTMENT COMPANY ACT" - The Investment
Company Act of 1940, as amended from time to time; each
reference herein to any section of such Act or any rule
or regulation thereunder shall constitute a reference to
any successor provision thereto.
"MANAGING TRUSTEE" - The Trustee designated the
Managing Trustee by resolution of the Trustees.
"MANDATORY EXCHANGE" - The delivery by the
Trustees to the Holders of Shares (or, if the seller
elects the Cash Settlement Alternative under the
Contract, the amount in cash specified in the Contract as
payable in respect thereof) in mandatory exchange for the
TIMES on the Exchange Date.
"MARKETABLE SECURITIES" - Marketable Securities
as defined in the Contract.
"PARTICIPANT" - A Person having a book-entry
only system account with the Depositary.
"PAYING AGENT" - [ ] or its
successor as permitted under Section 6.6 of the Paying
Agent Agreement or appointed pursuant to Section 2.2(a)
hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent
Agreement, dated as of the date hereof, between the
Paying Agent and the Trustees, and any substitute
agreement therefor entered into pursuant to Section
2.2(a) hereof.
"PERSON" - An individual, a partnership, a
corporation, a trust, an unincorporated association, a
joint venture or other entity or a government or any
agency or political subdivision thereof.
"PROSPECTUS" - The prospectus relating to the
Trust constituting a part of the Registration Statement,
as first filed with the Commission pursuant to Rule
497(b) or (h) under the Securities Act, and as
subsequently amended or supplemented by the Trust.
"QUARTERLY DISTRIBUTION" - $______ per TIMES
paid to each Holder on each Distribution Date.
"RECORD DATE" - Each ________, ________,
________, and ________ of each year commencing ________,
1997.
"REFERENCE MARKET PRICE" - Reference Market
Price as defined in the Contract.
"REGISTRATION STATEMENT" - Registration
Statement on Form N-2 (Registration No. [ ]) of the
Trust, as amended.
"REORGANIZATION EVENT" - A Reorganization Event
as defined in the Contract.
"SECOND TIME OF DELIVERY" - The Second Time of
Delivery as defined in the Underwriting Agreement.
"SECURITIES ACT" - The Securities Act of 1933,
as amended from time to time.
"SELLER" - The person named as Seller in the
Contract.
"SHARES" - Shares of Common Stock to be
exchanged by the Trustees for the TIMES on the Exchange
Date.
"TEMPORARY INVESTMENTS" - U.S. Treasury
securities and any other cash held by the Trust in direct
short-term U.S. government obligations, as specified from
time to time by the Trustees or through standing
instructions from the Trustees to the Administrator or
the Paying Agent.
"TIMES" - $.___ Trust Issued Mandatory Common
Exchange Security of the Trust evidencing a Holder's
undivided interest in the Trust and right to receive a
pro rata distribution upon liquidation of the Trust
Estate.
"TRANSFER AGENT AND REGISTRAR" - [ ],
as Transfer Agent and Registrar for the Common Stock.
"TREASURY SECURITIES" - The meaning specified
in Section 2.3(b) hereof.
"TRUST ACCOUNT" - The account created pursuant
to Section 3.1 hereof.
"TRUST ESTATE" - The Contract and the Treasury
Securities held at any time by the Trust, together with
any Temporary Investments held at any time pursuant to
Section 3.5 hereof, and any proceeds thereof or therefrom
and any other moneys held at any time in the Trust
Account.
"UNDERWRITERS" - The Underwriters named in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" - The Underwriting
Agreement as described in the Prospectus.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 DECLARATION OF TRUST; PURPOSES OF
THE TRUST. The Sponsor hereby creates the Trust in order
that it may acquire the Treasury Securities, enter into
the Contract, issue and sell to the Sponsor and the
Underwriters the TIMES, hold the Trust Estate in trust
for the use and benefit of all present and future Holders
and otherwise carry out the terms and conditions of this
Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The
Trustees hereby declare that they will accept and hold
the Trust Estate in trust for the use and benefit of all
present and future Holders. The Sponsor has heretofore
deposited with the Trustees the sum of $10 to accept and
hold in trust hereunder until the issuance and sale of
the TIMES to the Underwriters, whereupon such sum shall
be donated to an organization satisfying the requirements
of Section 170(c)(2) of the Code selected by unanimous
consent of the Trustees.
SECTION 2.2 GENERAL POWERS AND DUTIES OF THE
TRUSTEES. In furtherance of the provisions of Section
2.1 hereof, the Sponsor authorizes and directs the
Trustees:
(a) to enter into and perform (and, in
accordance with Section 8.4(a) hereof, amend), the
Contract, the Collateral Agreement, the Underwriting
Agreement, the Indemnity Agreement, the Custodian
Agreement, the Administration Agreement and the
Paying Agent Agreement and to perform all
obligations of the Trustees (including the
obligation to provide indemnity hereunder and
thereunder) and enforce all rights and remedies of
the Trust under each of such agreements; and if any
of the Custodian Agreement, the Administration
Agreement, the Collateral Agreement and the Paying
Agent Agreement terminates, or the agent of the
Trust thereunder resigns or is discharged, to
appoint a substitute agent and enter into a new
agreement with such substitute agent containing
provisions substantially similar to those contained
in the agreement being terminated; provided that in
any such new agreement (i) the Custodian and the
Paying Agent shall each be a commercial bank or
trust company organized and existing under the laws
of the United States of America or any state
therein, shall have full trust powers and shall have
minimum capital, surplus and retained earnings of
not less than $100,000,000; and (ii) the
Administrator and the Collateral Agent shall each be
a reputable financial institution qualified in all
respects to carry out its obligations under the
Administration Agreement or the Collateral
Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to
create and administer the Trust Account, to direct
payments received by the Trust to the Trust Account
and to make payments out of the Trust Account as set
forth in Article III hereof;
(c) to issue and sell to the Underwriters
an aggregate of up to ______ TIMES (including those
TIMES subject to the over-allotment option of the
Underwriters provided for in the Underwriting
Agreement) pursuant to the Underwriting Agreement
and as contemplated by the Prospectus; provided,
however, that subsequent to the determination of the
public offering price per TIMES and related
underwriting discount for the TIMES to be sold to
the Underwriters but prior to the sale of the TIMES
to the Underwriters, the TIMES originally issued to
the Sponsor shall be split into a greater number of
TIMES so that immediately following such split the
value of each TIMES held by the Sponsor will equal
the aforesaid public offering price less the related
underwriting discount;
(d) to select independent public
accountants and, subject to the provisions of
Section 8.5 hereof, to engage such independent
public accountants;
(e) to engage legal counsel and, to the
extent required by Section 2.4 hereof, to engage
professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced
against the Trustees or the Trust and to prosecute
any action which the Trustees deem necessary to
protect the Trust and the rights and interests of
Holders, and to pay the costs thereof;
(g) to arrange for the bonding of
officers and employees of the Trust as required by
Section 17(g) of the Investment Company Act and the
rules and regulations thereunder;
(h) to delegate any and all of its powers
and duties hereunder as contemplated by the
Custodian Agreement, the Paying Agent Agreement and
the Administration Agreement, to the extent
permitted by applicable law; and
(i) to adopt and amend bylaws, and take
any and all such other actions as necessary or
advisable to carry out the purposes of the Trust,
subject to the provisions hereof and applicable law,
including, without limitation, the Investment
Company Act.
SECTION 2.3 PORTFOLIO ACQUISITION. In
furtherance of the provisions of Section 2.1 hereof, the
Sponsor further specifically authorizes and directs the
Trustees:
(a) to enter into the Contract with
respect to the Shares subject thereto with the
Seller on the Commencement Date for settlement on
the date or dates provided thereunder and, subject
to satisfaction of the conditions set forth in the
Contracts, to pay the Firm Purchase Price and the
Additional Purchase Price, if any, thereunder with
the proceeds of the sale of the TIMES, net of
underwriting commissions and other expenses payable
in connection with the public offering of the TIMES
as described in Section 3.2 hereof and net of the
purchase price paid for the Treasury Securities as
provided in paragraph (b) below; and, subject to the
adjustments and exceptions set forth in the
Contract, the Contract shall entitle the Trust to
receive from the Seller on the Exchange Date the
Shares subject thereto (or, if the Seller elects the
Cash Settlement Alternative under the Contract, the
amount in cash specified in the Contract in respect
thereof) so that the Trust may execute the Exchange
with the Holders; and
(b) to purchase for settlement at the
First Time of Delivery, and at the Second Time of
Delivery, as appropriate, with the proceeds of the
sale the TIMES, net of underwriting commissions and
other expenses payable in connection with the public
offering of the TIMES, U.S. Treasury securities from
such brokers or dealers as the Trustees shall
designate in writing to the Administrator having the
terms set forth on Schedule I hereto ("Treasury
Securities").
SECTION 2.4 PORTFOLIO ADMINISTRATION. In
furtherance of the provisions of Section 2.1 hereof, the
Sponsor further specifically authorizes and directs the
Trustees:
(a) DETERMINATION OF DILUTION OR MERGER
ADJUSTMENTS. Upon receipt of any notice pursuant to
[Section 5.4(b)] of the Contract of an event
requiring an adjustment to the Exchange Rate, or
upon otherwise acquiring knowledge of such an event,
to calculate the required adjustment and furnish
notice thereof to the Collateral Agent and the
Seller, or to request from the Seller such further
information as may be necessary to calculate or
effect the required adjustment;
(b) SELECTION OF INDEPENDENT INVESTMENT
BANK. Upon receipt of notice of (i) the occurrence
of a Reorganization Event in which property other
than cash or Marketable Securities is to be received
in respect of the Common Stock as described in
Section 6.2 of the Contract or (ii) an Excess
Purchase Payment in which the Company has paid or
will pay consideration other than cash as described
in Section 6.1(d) of the Contract, to select and
retain a nationally recognized investment banking
firm to determine the market value of such property
as provided in the Contract, and to deliver to the
Seller notice pursuant to Section 8.1 of the
Contract identifying the firm proposed to be
selected and retained, and to consult with the
Seller on such selection and retention as provided
in such Section 8.1;
(c) ACCELERATION. Upon receipt of any
notice pursuant to Section 5.4(a) of the Contract or
pursuant to Section 6(a) of the Collateral
Agreement that a Collateral Event of Default has
occurred, or upon otherwise acquiring notice that an
Event of Default has occurred, to request quotations
from Independent Dealers, compute Acceleration Value
and Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with
respect to the Contract, all as described in Article
VII of the Contract;
(d) DETERMINATION OF EXCHANGE DATE
AMOUNTS. To calculate, on the Exchange Date, the
number of Shares (or, if the Seller elects the Cash
Settlement Alternative under the Contract, the
amount in cash) required to be delivered by the
Seller under Section 1.1 of the Contract or, if a
Reorganization Event shall have occurred, the amount
of cash required to be delivered by the Seller, and
the number of Marketable Securities permitted to be
delivered by the Seller in lieu of all or a portion
of such cash, all as provided in Section 6.2 of the
Contract; and to furnish Notice of the amounts so
determined to the Collateral Agent and the Seller;
(e) DISTRIBUTION OF EXCHANGE
CONSIDERATION. Unless a Reorganization Event shall
have occurred (in which event distribution of
proceeds shall be governed by Section 8.3 below) or
the Seller elects the Cash Settlement Alternative
under the Contract (in which event the cash received
in respect thereof shall be distributed pro rata to
the Holders of TIMES):
(i) DETERMINATION OF FRACTIONAL
SHARES. To determine, on the Exchange Date:
(A) for each Holder of TIMES, such Holder's
pro rata share of the total number of Shares
delivered to the Trustees under the Contract on
the Exchange Date; and (B) the number of
fractional Shares allocable to each Holder
(including, in the case of the Depositary,
fractional shares allocable to beneficial
owners of TIMES who own through Participants)
and in the aggregate;
(ii) CASH FOR FRACTIONAL SHARES. To
sell, in the Principal market therefor, on the
Exchange Date, a number of Shares equal to the
aggregate number of fractional Shares
determined pursuant to clause (i) (B) above,
rounded down to the nearest integral number;
and to determine the difference between (A) the
aggregate proceeds of such sale (net of any
brokerage or related expenses) and (B) the
product of the number of Shares so sold and
the Reference Market Price; and, in accordance
with the Indemnity Agreement, to pay such
difference, if positive, to Bear, Xxxxxxx & Co.
Inc., or to request payment of such difference,
if negative, from Bear, Xxxxxxx & Co. Inc.;
(iii) DELIVERY OF SHARES. To
deliver the remaining Shares to the Transfer
Agent and Registrar on the Exchange Date, with
instructions that such Shares be re-registered
and re-issued as follows: (A) for and in the
name of each Holder (other than the
Depositary) who holds TIMES in definitive form,
the Transfer Agent and Registrar shall be
instructed to issue definitive certificates
representing a number of Shares equal to such
Holder's pro rata share of the total delivered
to the Trustees under the Contract, rounded
down to the nearest integral number; (B) the
Transfer Agent and Registrar Shares shall be
instructed to transfer all remaining Shares to
the account of the Custodian held through the
Depositary, who shall then be instructed to
transfer and credit such Shares to each
Participant who holds TIMES, with each
Participant receiving its pro rata share of the
total Shares delivered to the Trust on the
Exchange Date, reduced by the aggregate
fractional shares allocable to such
Participant;
(iv) DISTRIBUTION OF CASH IN RESPECT
OF FRACTIONAL SHARES. To distribute to each
Holder of TIMES cash in the amount of: (A) the
fraction of a Share, if any, allocable to such
Holder as determined pursuant to clause (i) (B)
above; times (B) the Reference Market Price;
and
(v) RECORD DATE. The distributions
described in this paragraph (e) shall be made
to Holders of record as of the close of
business on the Business Day preceding the
Exchange Date.
SECTION 2.5 MANNER OF SALES. Any sale of
Trust property permitted under Section 8.3(c) hereof
shall be made through such executing brokers or to such
dealers as the Trustees, seeking best price and execution
for the Trust, shall designate in writing to the Paying
Agent, taking into account such factors as price,
commission, size of order, difficulty of execution and
brokerage skill required.
SECTION 2.6 LIMITATIONS ON TRUSTEES' POWERS.
The Trustees are not permitted:
(a) to purchase or hold any securities or
instruments except for the Shares, the Contract, the
Treasury Securities, the Temporary Investments
contemplated by Section 3.5 hereof and, in the event
of a Reorganization Event, Marketable Securities;
[(b) to dispose of the Contract prior to
the Exchange Date;]
(c) to issue any securities or
instruments except for the TIMES, or to issue any
TIMES other than the TIMES sold to the Sponsor and
the TIMES to be sold pursuant to the Underwriting
Agreement and until such TIMES have been so
purchased and paid for in full;
(d) to make short sales or purchases on
margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate,
commodities or commodities contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or
permit the Administrator, the Paying Agent or the
Custodian to take any action, that would vary the
investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or
otherwise take any action or direct or permit any
action to be taken that would or could cause the
Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees
shall, upon issuance of the TIMES, establish with the
Paying Agent an account to be called the "Trust Account".
All moneys received by the Trustees in respect of the
Contract, the Treasury Securities and any Temporary
Investments held pursuant to Section 3.5 hereof, all
moneys received from the sale of the TIMES to the
Sponsor, and any proceeds from the sale to the
Underwriters of the TIMES after the purchase of the
Contract and the Treasury Securities and the payment of
the Trust's expenses described in Section 3.2 hereof
shall be credited to the Trust Account.
SECTION 3.2 PAYMENT OF FEES AND EXPENSES. The
Administrator is authorized to pay from the Trust Account
out of the net proceeds of the sale of the TIMES, the
fees and expenses of the Trust incurred in connection
with the offering of the TIMES and the costs and expenses
incurred in the organization of the Trust.
SECTION 3.3 DISTRIBUTIONS TO HOLDERS. On or
shortly after each Distribution Date the Trustees shall
distribute to each Holder of record at the close of
business on the preceding Record Date, at the post office
address of the Holder appearing on the books of the Trust
or Paying Agent or by any other means mutually agreed
upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly
Distribution computed as of the close of business on such
Distribution Date.
SECTION 3.4 SEGREGATION. All moneys and other
assets deposited or received by the Trustees hereunder
shall be held by them in trust as part of the Trust
Estate until required to be disbursed or otherwise
disposed of in accordance with the provisions of this
Trust Agreement, and the Trustees shall handle such
moneys and other assets in such manner as shall
constitute the segregation and holding in trust within
the meaning of the Investment Company Act.
SECTION 3.5 INVESTMENTS. To the extent
necessary to enable the Paying Agent to make the next
succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account
shall be invested as soon as possible by the Paying Agent
in Temporary Investments maturing no later than the
Business Day preceding the next following Distribution
Date. Except as otherwise specifically provided herein
or in the Paying Agent Agreement, the Paying Agent shall
not have the power to sell, transfer or otherwise dispose
of any Temporary Investment prior to the maturity
thereof, or to acquire additional Temporary Investments.
The Paying Agent shall hold any Temporary Investments to
its maturity and shall apply the proceeds thereof upon
maturity to the payment of the next succeeding Quarterly
Distribution. All such Temporary Investments shall be
selected from time to time by the Trustees or pursuant to
standing instructions from the Trustees to the
Administrator, and the Administrator and/or Paying Agent
shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary
Investment. Any interest or other income received on any
moneys in the Trust Account shall, upon receipt thereof,
be deposited into the Trust Account. Notwithstanding the
foregoing, not more than 5% of the assets of the Trust
may be held at any time in the form of cash and Temporary
Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the
proceeds thereof, if, when and to the extent needed to
maintain compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall
have no right or obligation to redeem TIMES.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY;
TRANSFER OF TIMES
SECTION 5.1 FORM OF CERTIFICATE. Each
Certificate evidencing TIMES shall be countersigned
manually or in facsimile by the Managing Trustee and
executed manually by the Paying Agent in substantially
the form of Exhibit A hereto with the blanks
appropriately filled in, shall be dated the date of
execution and delivery by the Paying Agent and shall
represent a fractional undivided interest in the Trust,
the numerator of which fraction shall be the number of
TIMES set forth on the face of such Certificate and the
denominator of which shall be the total number of TIMES
outstanding at that time. All TIMES shall be issued in
registered form and shall be numbered serially.
Pending the preparation of definitive
Certificates, the Trustees may execute and the Paying
Agent shall authenticate and deliver temporary
Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory
to the Paying Agent). Temporary Certificates shall be
issuable as registered Certificates substantially in the
form of the definitive Certificates but with such
omissions, insertions and variations as may be
appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the
Paying Agent. Every temporary Certificate shall be
executed by the Managing Trustee and be authenticated by
the Paying Agent upon the same conditions and in
substantially the same manner, and with like effect, as
the definitive Certificates. Without unreasonable delay
the Managing Trustee shall execute and shall furnish
definitive Certificates and thereupon temporary
Certificates may be surrendered in exchange therefor
without charge at each office or agency of the Paying
Agent and the Paying Agent shall authenticate and deliver
in exchange for such temporary Certificates definitive
Certificates for a like aggregate number of TIMES. Until
so exchanged, the temporary Certificates shall be
entitled to the same benefits hereunder as definitive
Certificates.
SECTION 5.2 TRANSFER OF TIMES; ISSUANCE,
TRANSFER AND INTERCHANGE OF CERTIFICATES. TIMES may be
transferred by the Holder thereof by presentation and
surrender of properly endorsed Certificates at the office
of the Paying Agent, accompanied by such documents
executed by the Holder or his authorized attorney as the
Paying Agent deems necessary to evidence the authority of
the person making the transfer. Certificates issued
pursuant to this Trust Agreement are interchangeable for
one or more other Certificates in an equal aggregate
number of TIMES and all Certificates issued as may be
requested by the Holder and deemed appropriate by the
Paying Agent shall be issued in denominations of one
TIMES or any multiple thereof. The Paying Agent may deem
and treat the person in whose name any TIMES shall be
registered upon the books of the Paying Agent as the
owner of such TIMES for all purposes hereunder and the
Paying Agent shall not be affected by any notice to the
contrary. The transfer books maintained by the Paying
Agent for the purposes of this Section 5.2 hereof shall
include the name and address of the record owners of the
TIMES and shall be closed in connection with the
termination of the Trust pursuant to Section 8.3 hereof.
A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
with any such transfer shall be paid to the Paying Agent
by the Holder. A Holder may be required to pay a fee for
each new Certificate to be issued pursuant to the
preceding paragraph in such amount as may be specified by
the Paying Agent and approved by the Trustees.
All Certificates cancelled pursuant to this
Trust Agreement may be voided by the Paying Agent in
accordance with the usual practice of the Paying Agent or
in accordance with the instructions of the Trustees;
provided, however, that the Paying Agent shall not be
required to destroy cancelled Certificates.
The Paying Agent may adopt other reasonable
rules and regulations for the registration, transfer and
tender of TIMES as it may, in its discretion, deem
necessary.
SECTION 5.3 REPLACEMENT OF CERTIFICATES. In
case any Certificate shall become mutilated or be
destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and
substitution therefor upon the Holder's furnishing the
Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable
regulations and conditions as the Paying Agent may
prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or
reasonably impose; provided that if the Trust has
terminated or is in the process of terminating, the
Paying Agent, in lieu of issuing such new Certificate,
may, upon the terms and conditions set forth herein, make
the distributions set forth in Section 8.3(c) hereof.
Any mutilated Certificate shall be duly surrendered and
cancelled before any duplicate Certificate shall be
issued in exchange and substitution therefor. Upon
issuance of any duplicate Certificate pursuant to this
Section 5.3 hereof, the original Certificate claimed to
have been lost, stolen or destroyed shall become null and
void and of no effect, and any bona fide purchaser
thereof shall have only such rights as are afforded under
Article 8 of the Uniform Commercial Code to a Holder
presenting a Certificate for transfer in the case of an
overissue.
ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 Execution of the Contract. The
Contract shall be countersigned manually or in facsimile
by the Managing Trustee and executed manually by the
Seller and shall be dated the date of execution and
delivery by the Seller.
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees. The Trust shall have
three Trustees who shall initially be elected by the
Sponsor. One Trustee shall be the Managing Trustee and,
as such, is authorized to execute documents and
instruments on behalf of the Trust. The Managing Trustee
will be appointed by resolution of the Trustees. Each
Trustee shall serve until the next regular annual or
special meeting of Holders called for the purpose of
electing Trustees and, then, until such Trustee's
successor is duly elected and qualified. Holders may not
cumulate their votes in the election of Trustees. Each
Trustee shall not be considered to have qualified for the
office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his
consent by executing this Trust Agreement or a supplement
hereto.
SECTION 7.2 Vacancies. Any vacancy in the
office of a Trustee may be filled in compliance with
Sections 10 and 16 of the Investment Company Act by the
vote, within thirty days, of the remaining Trustees;
provided that if required by Section 16 of the Investment
Company Act, the Trustees shall forthwith cause to be
held as promptly as possible and in any event within
sixty days (unless the Commission by order shall extend
such period) a meeting of Holders for the purpose of
electing Trustees in compliance with Sections 10 and 16
of the Investment Company Act. Until a vacancy in the
office of any Trustee is filled as provided above, the
remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by
this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the TIMES
entitled to vote present in person or by proxy at a
special meeting of Holders called for the purpose of
electing any Trustee. Each individual Trustee shall be
at least 21 years of age and shall not be under any legal
disability. No Trustee who is an "interested person", as
defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the
Trust not to be in compliance with the percentage
limitations on interested persons in Section 10 of the
Investment Company Act. Trustees need not be Holders.
Notice of the appointment or election of a successor
Trustee shall be mailed promptly after acceptance of such
appointment by the successor Trustee to each Holder.
SECTION 7.3 POWERS. The Trust will be
managed solely by the Trustees, who will, subject to the
provisions of Article II hereof, have complete and
exclusive control over the management, conduct and
operation of the Trust's business, and shall have the
rights, powers and authority of a board of directors of a
corporation organized under Delaware law. The Trustees
shall have fiduciary responsibility for the safekeeping
and use of all funds and assets of the Trust and shall
not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of
the Trust and except in accordance with the terms of this
Trust Agreement. Subject to the continuing supervision
of the Trustees and as permitted by applicable law, the
functions of the Trust shall be performed by the
Custodian, the Paying Agent, the Administrator and such
other entities engaged to perform such functions as the
Trustees may determine, including, without limitation,
any or all administrative functions.
SECTION 7.4 MEETINGS. Meetings of the
Trustees shall be held from time to time upon the call of
any Trustee on not less than 48 hours' notice (which may
be waived by any or all of the Trustees in writing either
before or after such meeting or by attendance at the
meeting unless the Trustee attends the meeting for the
express purpose of objecting to the transaction of any
business on the ground that the meeting has not been
lawfully called or convened). The Trustees shall act
either by majority vote of the Trustees present at a
meeting at which at least a majority of the Trustees then
in office are present or by a unanimous written consent
of the Trustees without a meeting. Except as otherwise
required under the Investment Company Act, all or any of
the Trustees may participate in a meeting of the Trustees
by means of a conference telephone call or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to such
communications equipment shall constitute presence in
person at such meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any
Trustee may resign and be discharged of the trust created
by the Trust Agreement by executing an instrument in
writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining
Trustees, and such resignation shall become effective
immediately unless otherwise specified therein. Any
Trustee may be removed in the event of incapacity by vote
of the remaining Trustees and for any reason by written
declaration or vote of the Holders of more than 66 2/3%
of the outstanding TIMES, notice of which vote shall be
given to the remaining Trustees and the Administrator.
The resignation, removal or failure to reelect any
Trustee shall not cause the termination of the Trust.
SECTION 7.6 LIABILITY. The Trustees shall not
be liable to the Trust or any Holder for any action taken
or for refraining from taking any action except in the
case of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties of their office.
Specifically, without limitation, the Trustees shall not
be responsible for or in respect of the recitals herein
or the validity or sufficiency of this Trust Agreement or
for the due execution hereof by any other Person, or for
or in respect of the validity or sufficiency of TIMES or
certificates representing TIMES and shall in no event
assume or incur any liability, duty or obligation to any
Holder or to any other Person, other than as expressly
provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and
shall not be answerable for the default or misconduct of
any such Persons if such Persons shall have been selected
with reasonable care. Action in good faith may include
action taken in good faith in accordance with an opinion
of counsel. In no event shall any Trustee be personally
liable for any expenses with respect to the Trust. Each
Trustee shall be indemnified from the Trust Account with
respect to any claim, liability, loss or expense incurred
in acting as Trustee of the Trust, including the costs
and expenses of the defense against any such claim or
liability, except in the case of willful misfeasance, bad
faith, gross negligence or reckless disregard of the
duties of his office.
SECTION 7.7 COMPENSATION. Each Trustee, other
than a Trustee who is a director, officer or employee of
the Sponsor, any Underwriter, or the Administrator or any
affiliate thereof, shall receive a one-time, up-front fee
of [$ ], in respect of its annual fee and
anticipated out-of-pocket expenses. In addition, the
Managing Trustee shall receive an additional one-time,
up-front fee of [$ ] for serving in such capacity.
The Trustees will not receive any pension or retirement
benefits. In the event of the resignation or removal of
a Trustee, such Trustee shall remit to the Trust the
portion of its fee ratable for the period from the day of
such resignation or removal through the Exchange Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees
shall not hold annual or regular meetings of Holders
except as set forth herein. A special meeting may be
called at any time by the Trustees or upon petition of
Holders of not less than 51% of the TIMES outstanding
(unless substantially the same matter was voted on during
the preceding 12 months), and shall be called as provided
in Section 7.2 hereof (or as otherwise required by the
Investment Company Act and the rules and regulations
thereunder, including, without limitation, when requested
by the Holders of not less than 10% of the TIMES
outstanding for the purposes of voting upon the question
of the removal of any Trustee or Trustees). The Trustees
shall establish, and notify the Holders in writing of,
the record date for each such meeting which shall be not
less than 10 nor more than 50 days before the meeting
date. Holders at the close of business on the record
date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such
record date (or prior to such record date if
appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy
in the form approved by the Trustees and complying with
the Investment Company Act and the rules and regulations
thereunder. Except as otherwise specified herein or in
any provision of the Investment Company Act and the rules
and regulations thereunder, any action may be taken by
vote of Holders of a majority of the TIMES outstanding
present in person or by proxy if Holders of a majority of
TIMES outstanding on the record date are so represented.
Each TIMES shall have one vote and may be voted in person
or by duly executed proxy. Any proxy may be revoked by
notice in writing, by a subsequently dated proxy or by
voting in person at the meeting, and no proxy shall be
valid after eleven months following the date of its
execution.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a)
The Trustees shall keep a certified copy or duplicate
original of this Trust Agreement on file at the office of
the Trust and the office of the Administrator available
for inspection at all reasonable times during its usual
business hours by any Holder. The Trustees shall keep
proper books of record and account for all the
transactions under this Trust Agreement at the office of
the Trust and the office of the Administrator, and such
books and records shall be open to inspection by any
Holder at all reasonable times during usual business
hours. The Trustees shall retain all books and records in
compliance with Section 31 of the Investment Company Act
and the rules and regulations thereunder.
(b) With each payment to Holders the
Paying Agent shall set forth, either in the
instruments by means of which payment is made or in
a separate statement, the amount being paid from the
Trust Account expressed as a dollar amount per TIMES
and the other information required under Section 19
of the Investment Company Act and the rules and
regulations thereunder. The Trustees shall prepare
and file or distribute reports as required by
Section 30 of the Investment Company Act and the
rules and regulations thereunder. The Trustees
shall prepare and file such reports as may from time
to time be required to be filed or distributed to
Holders under any applicable state or Federal
statute or rule or regulation thereunder, and shall
file such tax returns as may from time to time be
required under any applicable state or Federal
statute or rule or regulation thereunder. One of
the Trustees shall be designated by resolution of
the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment
Company Act.
(c) In calculating the net asset value of
the Trust as required by the Investment Company Act,
(i) the Treasury Securities will be valued at the
mean between the last current bid and asked prices
or, if quotations are not available, as determined
in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less
will be valued at cost with accrued interest or
discount earned included in interest receivable and
(iii) the Contract will be valued at the mean of the
bid prices received by the Administrator from at
least three independent broker-dealer firms
unaffiliated with the Trust to be named by the
Trustees who are in the business of making bids on
financial instruments similar to the Contract and
with terms comparable thereto.
SECTION 8.3 TERMINATION. (a) This Trust
Agreement and the Trust created hereby shall terminate
upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the TIMES have
not theretofore been issued or (y) the net worth of the
Trust is not at least $100,000 at such time, (ii) the
date of the repayment, sale or other disposition, as the
case may be, of all of the Contract, the Treasury
Securities and any other securities held hereunder, (iii)
the date 10 Business Days after the Exchange Date (or, if
the Contracts shall be accelerated pursuant to Article
VIII thereof, 10 Business Days after the date on which
the Trust shall receive the Shares then required to be
delivered by the Seller, or the proceeds of any sale of
collateral pursuant to Section 8(c) of the Collateral
Agreement), and (iv) the date which is 21 years less 91
days after the death of the last survivor of all of the
descendants of [ ] living on the date hereof.
The Trust is irrevocable, the Sponsor has no right to
withdraw any assets constituting a portion of the Trust
Estate, and the dissolution of the Sponsor shall not
operate to terminate the Trust. The death or incapacity
of any Holder shall not operate to terminate this Trust
Agreement, nor entitle his legal representatives or heirs
to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of
the Trust, and shall not otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Written notice of any termination
shall be sent to Holders specifying the record date
for any distribution to Holders and the time of
termination as determined by the Trustees, upon
which the books maintained by the Paying Agent
pursuant to Section 5.2 hereof shall be closed.
(c) For purposes of termination under
Sections 8.3(a)(ii), (iii) and (iv) hereof, within
five Business Days after such termination, the
Trustees shall, subject to any applicable provisions
of law, effect the sale of any remaining property of
the Trust, and the Paying Agent shall distribute pro
rata as soon as practicable thereafter to each
Holder, upon surrender for cancellation of its
Certificates, its interest in the Trust Estate.
Together with the distribution to the Holders, the
Trustees shall furnish the Holders with a final
statement as of the date of the distribution of the
amount distributable with respect to each TIMES.
SECTION 8.4 AMENDMENT AND WAIVER. (a) This
Trust Agreement, and any of the agreements referred to in
Section 2.2(a) hereof, may be amended from time to time
by the Trustees for any purpose prior to the issuance and
sale to the Underwriters of the TIMES and thereafter
without the consent of any of the Holders (i) to cure any
ambiguity or to correct or supplement any provision
contained herein or therein which may be defective or
inconsistent with any other provision contained herein or
therein; (ii) to change any provision hereof or thereof
as may be required by applicable law or the Commission or
any successor governmental agency exercising similar
authority; or (iii) to make such other provisions in
regard to matters or questions arising hereunder or
thereunder as shall not materially adversely affect the
interests of the Holders (as determined in good faith by
the Trustees, who may rely on an opinion of counsel).
(b) This Trust Agreement may also be
amended from time to time by the Trustees (or the
performance of any of the provisions of the Trust
Agreement may be waived) with the consent by the
required vote of the Holders in accordance with
Section 8.1 hereof; provided that this Trust
Agreement may not be amended (i) without the consent
by vote of the Holders of all TIMES then
outstanding, so as to increase the number of TIMES
issuable hereunder above the number of TIMES
specified in Section 2.2(c) hereof or such lesser
number as may be outstanding at any time during the
term of this Trust Agreement, (ii) to reduce the
interest in the Trust represented by TIMES without
the consent of the Holders of such TIMES, (iii) if
such amendment is prohibited by the Investment
Company Act or other applicable law, (iv) without
the consent by vote of the Holders of all TIMES then
outstanding, if such amendment would effect a change
in the voting requirements set forth in Section 8.1
hereof or this Section 8.4, or (v) without the
consent by vote of the Holders of the lesser of (x)
67% or more of the TIMES represented at a special
meeting of Holders, if more than 50% of the TIMES
outstanding are represented at such meeting, and (y)
more than 50% of the TIMES outstanding, if such
amendment would effect a change in Section 2.1 or
2.6 hereof.
(c) Promptly after the execution of any
amendment, the Trustees shall furnish written
notification of the substance of such amendment to
each Holder.
(d) Notwithstanding subsections (a) and
(b) of this Section 8.4 no amendment hereof shall
permit the Trust, the Trustees, the Administrator,
the Paying Agent or the Custodian to take any action
or direct or permit any Person to take any action
that (i) would vary the investment of Holders within
the meaning of Treasury Regulation Section
301.7701-4(c), or (ii) would or could cause the
Trust, or direct or permit any action to be taken
that would or could cause the Trust, not to be a
"grantor trust" under the Code.
SECTION 8.5 ACCOUNTANTS.
(a) The Trustees shall, in accordance
with Section 30 of the Investment Company Act, file
annually with the Commission such information,
documents and reports as investment companies having
securities registered on a national securities
exchange are required to file annually pursuant to
Section 13(a) of the Securities Exchange Act of
1934, as amended, and the rules and regulations
issued thereunder. The Trustees shall transmit to
the Holders, at least semi-annually, the reports
required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder,
including, without limitation, a balance sheet
accompanied by a statement of the aggregate value of
investments on the date of such balance sheet, a
list showing the amounts and values of such
investments owned on the date of such balance sheet,
and a statement of income for the period covered by
the report. Financial statements contained in such
annual reports shall be accompanied by a certificate
of independent public accounts based upon an audit
not less in scope or procedures than that which
independent public accountants would ordinarily make
for the purpose of presenting comprehensive and
dependable financial statements and shall contain
such information as the Commission may prescribe.
Each such report shall state that such independent
public accountants have verified investments owned,
either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants
referred to in subsection (a) above shall be
selected at a meeting held within thirty days before
or after the beginning of the fiscal year by the
vote, cast in person, of a majority of the Trustees
who are not "interested persons" as defined in the
Investment Company Act and such selection shall be
submitted for ratification at the first meeting of
Holders to be held as set forth in Section 8.1
hereof, and thereafter as required by the Investment
Company Act and the rules and regulations
thereunder. The employment of any independent public
accountant for the Trust shall be conditioned upon
the right of the Holders by a vote of the lesser of
(i) 67% or more of the TIMES present at a special
meeting of Holders, if Holders of more than 50% of
TIMES outstanding are present or represented by
proxy at such meeting or (ii) more than 50% of the
TIMES outstanding to terminate such employment at
any time without penalty.
(c) The foregoing provisions of this
Section 8.5 are in addition to any applicable
requirements of the Investment Company Act and the
rules and regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. Each
Holder holds at any given time a beneficial interest in
the Trust Estate, but does not have any right to take
title or possession of any portion of the Trust Estate.
Each Holder expressly waives any right he may have under
any rule of law, or the provisions of any statute, or
otherwise, to require the Trustees at any time to
account, in any manner other than as expressly provided
in this Trust Agreement, for the Shares, the Contract,
the Treasury Securities or other assets or moneys from
time to time received, held and applied by the Trustees
hereunder. No Holder shall have any right except as
provided herein to control or determine the operation and
management of the Trust or the obligations of the parties
hereto. Nothing set forth herein or in the certificates
representing TIMES shall be construed to constitute the
Holders from time to time as partners or members of an
association.
SECTION 8.7 DELAWARE LAW TO GOVERN. This
Trust Agreement is executed and delivered in the State of
Delaware, and all laws or rules of construction of the
State of Delaware shall govern the rights of the parties
hereto and the Holders and the construction, validity and
effect of the provisions hereof.
SECTION 8.8 NOTICES. Any notice, demand,
direction or instruction to be given to the Sponsor
hereunder shall be in writing and shall be duly given if
mailed or delivered to Bear, Xxxxxxx & Co., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ________, or
at such other address as shall be specified by the
Sponsor to the other parties hereto in writing. Any
notice, demand, direction or instruction to be given to
the Trust and the Trustees hereunder shall be in writing
and shall be duly given if mailed or delivered to the
Trust at [ ], New York, New York [ ] and
to each Trustee at such Trustee's address set forth
beneath its signature below, or such other address as
shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder
shall be duly given if mailed, first class postage
prepaid, or by such other substantially equivalent means
as the Trustees may deem appropriate, or delivered to
such Holder at the address of such Holder appearing on
the registry of the Paying Agent.
SECTION 8.9 SEVERABILITY. If any one or more
of the covenants, agreements, provisions or terms of this
Trust Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining
covenants, agreements, provisions and terms of this Trust
Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust
Agreement or of the Certificates, or the rights of the
Holders thereof.
SECTION 8.10 COUNTERPARTS. This Trust
Agreement may be executed in counterparts, and as so
executed will constitute one agreement, binding on all of
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have
caused this Trust Agreement to be duly executed.
_______________________________
(Bear, Xxxxxxx & Co. Inc.)
TRUSTEES:
_______________________________
Name:
Address:
_______________________________
Name:
Address:
_______________________________
Name:
Address:
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal
or interest components of U.S. Treasury debt obligations.
TIMES Payment Date Aggregate Face Amount,
per
TIMES, Payable
at Payment Date
Exhibit A
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE
TERMS, PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT
REFERRED TO BELOW TO WHICH THE HOLDER OF THIS CERTIFICATE
BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
$___. TRUST ISSUED MANDATORY COMMON EXCHANGE SECURITIES
FIRSTPLUS FINANCIAL, INC. MANDATORY
COMMON EXCHANGE TRUST
CUSIP NO. _______
NO. _____ _______ SHARES
THIS CERTIFIES THAT
_____________________________________________ IS THE
RECORD OWNER OF ____________________ $___ TRUST ISSUED
MANDATORY COMMON EXCHANGE SECURITIES OF FIRSTPLUS
FINANCIAL, INC. MANDATORY COMMON EXCHANGE TRUST,
CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN FIRSTPLUS
FINANCIAL, INC. MANDATORY COMMON EXCHANGE TRUST, A TRUST
CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT
TO A TRUST AGREEMENT BETWEEN BEAR, XXXXXXX & CO. INC. AND
THE TRUSTEES NAMED THEREIN. THIS CERTIFICATE IS ISSUED
UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT TO WHICH THE HOLDER OF
THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF
ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS
AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR AND
PAYING AGENT, [ ], [ ].
THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY
THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED
ATTORNEY AT THE OFFICE OF THE PAYING AGENT UPON SURRENDER
OF THIS CERTIFICATE PROPERLY ENDORSED OR ACCOMPANIED BY A
WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS
THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM
SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES
AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY
COUNTERSIGNED BY THE PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING
TRUSTEE.
FIRSTPLUS FINANCIAL, INC.
MANDATORY COMMON EXCHANGE TRUST
DATED: By _____________________________
Managing Trustee
COUNTERSIGNED:
[ ],
as Paying Agent
By ___________________________
Authorized Signature
