1
EXHIBIT 4.13
================================================================================
FORM OF
AMENDED AND RESTATED TRUST AGREEMENT
OF
ACS TRUST [I] [II]
----------
Dated as of
--------- --, ----
----------
================================================================================
2
TABLE OF CONTENTS
----------
PAGE
----
ARTICLE I DEFINITIONS
SECTION 1.01 Definitions....................................................2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application...............................8
SECTION 2.02 Lists of Holders of Preferred Securities.......................9
SECTION 2.03 Reports by the Property Trustee................................9
SECTION 2.04 Periodic Reports to the Property Trustee.......................9
SECTION 2.05 Evidence of Compliance with Conditions Precedent..............10
SECTION 2.06 Events of Default; Waiver.....................................10
SECTION 2.07 Disclosure of Information.....................................11
SECTION 2.08 Provision of Information to ACS...............................12
ARTICLE III ORGANIZATION
SECTION 3.01 Name..........................................................12
SECTION 3.02 Office........................................................12
SECTION 3.03 Issuance of the Securities....................................12
SECTION 3.04 Purchase of Debentures........................................13
SECTION 3.05 Purpose.......................................................13
SECTION 3.06 Authority.....................................................14
SECTION 3.07 Title to Property of the Trust................................14
SECTION 3.08 Powers and Duties of the Regular Trustees.....................14
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees..........16
SECTION 3.10 Powers and Duties of the Property Trustee.....................18
SECTION 3.11 Delaware Trustee..............................................20
SECTION 3.12 Certain Rights and Duties of the Property Trustee.............21
SECTION 3.13 Registration Statement and Related Matters....................24
SECTION 3.14 Filing of Amendments to Certificate of Trust..................25
SECTION 3.15 Execution of Documents by the Regular Trustees................25
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of
Securities....................................................25
SECTION 3.17 Duration of the Trust.........................................25
SECTION 3.18 Mergers.......................................................25
SECTION 3.19 Property Trustee May File Proofs of Claim.....................27
ARTICLE IV SPONSOR
SECTION 4.01 Purchase of Common Securities by the Sponsor..................28
SECTION 4.02 Expenses......................................................29
i
3
ARTICLE V TRUSTEES
SECTION 5.01 Number of Trustees; Qualifications............................29
SECTION 5.02 Appointment, Removal and Resignation of the Trustees..........31
SECTION 5.03 Vacancies Among the Trustees..................................32
SECTION 5.04 Effect of Vacancies...........................................33
SECTION 5.05 Meetings......................................................33
SECTION 5.06 Delegation of Power...........................................33
SECTION 5.07 Merger, Conversion, Consolidation or Succession to
Business......................................................34
ARTICLE VI DISTRIBUTIONS
SECTION 6.01 Distributions.................................................34
ARTICLE VII ISSUANCE OF THE SECURITIES
SECTION 7.01 General Provisions Regarding the Securities...................34
SECTION 7.02 [Conversion Agent.............................................36
ARTICLE VIII DISSOLUTION OF THE TRUST
SECTION 8.01 Dissolution of the Trust......................................36
ARTICLE IX TRANSFER OF INTERESTS
SECTION 9.01 Transfer of Securities........................................37
SECTION 9.02 Transfer of Certificates......................................37
SECTION 9.03 Deemed Security Holders.......................................37
SECTION 9.04 Book Entry Interests..........................................38
SECTION 9.05 Notices to Holders of Certificates............................38
SECTION 9.06 Appointment of Successor Clearing Agency......................39
SECTION 9.07 Definitive Preferred Securities Certificates..................39
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates.............39
ARTICLE X LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.01 Exculpation...................................................40
SECTION 10.02 Indemnification...............................................40
SECTION 10.03 Outside Business..............................................40
ARTICLE XI ACCOUNTING
SECTION 11.01 Fiscal Year...................................................41
SECTION 11.02 Certain Accounting Matters....................................41
SECTION 11.03 Banking.......................................................42
SECTION 11.04 Withholding...................................................42
ii
4
ARTICLE XII AMENDMENTS AND MEETINGS
SECTION 12.01 Amendments....................................................42
SECTION 12.02 Meetings of the Holders of Securities; Action by Written
Consent.......................................................43
ARTICLE XIII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE
SECTION 13.01 Representations and Warranties of the Property Trustee........45
SECTION 13.02 Representations and Warranties of the
Delaware Trustee........46
ARTICLE XIV MISCELLANEOUS
SECTION 14.01 Notices.......................................................46
SECTION 14.02 Undertaking for Costs.........................................48
SECTION 14.03 Governing Law.................................................48
SECTION 14.04 Headings......................................................48
SECTION 14.05 Partial Enforceability........................................48
SECTION 14.06 Counterparts..................................................48
SECTION 14.07 Intention of the Parties......................................48
SECTION 14.08 Successors and Assigns........................................49
SECTION 14.09 No Recourse...................................................49
SECTION 14.10 Agent for Service of Process..................................49
SECTION 14.11 Payment Currency..............................................49
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
iii
5
AMENDED AND RESTATED
TRUST AGREEMENT
OF
ACS TRUST [I] [II]
AMENDED AND RESTATED
TRUST AGREEMENT (this "Declaration")
dated and effective as of ________ ___, ____ by Xxxxxxx X. Xxxxxxxxx, Xx., an
individual, and Xxxxxx Xxxxxxx, an individual, as Regular Trustees (the "Regular
Trustees"), Wilmington Trust Company, as Property Trustee (the "Property
Trustee"), and Wilmington Trust Company, having its principal place of business
in the State of
Delaware, as
Delaware Trustee (the "
Delaware Trustee") (together
with all other Persons from time to time duly appointed and serving as trustees
in accordance with the provisions of this Declaration, the "Trustees"), by
Affiliated Computer Services, Inc., a
Delaware corporation, as trust sponsor
("ACS" or the "Sponsor"), and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as hereinafter defined) to be
issued pursuant to this Declaration.
WHEREAS, the Sponsor and certain of the Trustees entered into
a
Trust Agreement dated as of July 25, 2001, (the "Original Declaration") in
order to establish ACS Trust [I] [II], a statutory business trust (the "Trust"),
under the Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust")
of the Trust was filed with the office of the Secretary of State of the State of
Delaware on July 25, 2001; and
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Business Trust Act for the purpose of, as described more
fully in Sections 3.03, 3.04 and 3.05 hereof, (i) issuing and selling Preferred
Securities (as hereinafter defined) representing preferred undivided beneficial
interests in the assets of the Trust for cash and investing the proceeds thereof
in Debentures (as hereinafter defined) of ACS issued under the Indenture (as
hereinafter defined) to be held as assets of the Trust and (ii) issuing and
selling Common Securities (as hereinafter defined) representing common undivided
beneficial interests in the assets of the Trust to ACS in exchange for cash and
investing the proceeds thereof in additional Debentures issued under the
Indenture to be held as assets of the Trust;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all Debentures referred to in clauses
(i) and (ii) of the previous paragraph purchased by the Trust will be held for
the benefit of the Holders (as hereinafter defined) from time to time, of the
Certificates (as hereinafter defined) representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
6
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.01.
(b) A term defined anywhere in this Declaration has the same
meaning throughout.
(c) All references to "the Declaration" or "this Declaration"
are to this Amended and Restated
Trust Agreement (including Exhibits A, B and C
hereto (the "Exhibits")) as modified, supplemented or amended from time to time.
(d) All references in this Declaration to Articles, Sections
and Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified.
(e) A term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice
versa.
"ACS" or "Sponsor" means Affiliated Computer Services, Inc., a
Delaware corporation, or any successor entity resulting from any merger,
consolidation, amalgamation or other business combination.
"Additional Amounts" has the meaning set forth in the
Indenture.
"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 purposes of this definition,
"control" of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.04.
"Business Day" means any day that is not a Legal Holiday.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
2
7
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the
recitals above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the Closing Date as specified in the
Underwriting Agreement, which date is also the date of execution and delivery of
this Declaration.
"Code" means the United States Internal Revenue Code of 1986,
as amended from time to time, or any successor legislation. A reference to a
specific section (Sec.) of the Code refers not only to such specific section but
also to any corresponding provision of any United States Federal tax statute
enacted after the date of this Declaration, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.01(b).
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Annex I to Exhibit C.
"Common Stock" means the common stock, par value $0.01 per
share, of ACS or any other class of stock, other securities, cash or other
assets into which the Debentures are then convertible.
["Conversion Agent" has the meaning specified in Section
7.02.]
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or of any of its
Affiliates, (ii) any officer, director, shareholder, employee, representative or
agent of ACS or of any of its Affiliates and (iii) the Holders from time to time
of the Securities.
"Creditor" has the meaning specified in Section 4.02(c).
"Debenture Trustee" means U.S. Trust Company of Texas, N.A., a
national banking association, as trustee under the Indenture until a successor
is appointed thereunder and thereafter means such successor trustee.
3
8
"Debentures" means the series of [convertible] unsecured
subordinated debentures issued by ACS under the Indenture to the Property
Trustee and entitled the "____% [Convertible] Subordinated Debentures due
__________."
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.04.
"Delaware Trustee" has the meaning set forth in Section
5.01(a)(ii).
"Depositary Agreement" means the agreement among the Trust,
the Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"Dollar" has the meaning set forth in the Indenture.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means that an
Indenture Event of Default has occurred and is continuing with respect to the
Debentures.
"Exchange" has the meaning specified in Section 3.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.01.
"Global Certificate" has the meaning set forth in Section
9.04.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Holder Direct Action" has the meaning specified in Section
3.10(e).
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any Conversion Agent, any Paying Agent, any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Trustee, Conversion Agent or Paying Agent, or any employee or agent of the Trust
or of any of its Affiliates.
"Indenture" means the Indenture dated as of _________, _____
between ACS and the Debenture Trustee, as supplemented by the _______
Supplemental Indenture thereto dated as of ____________, ____, pursuant to which
the Debentures are to be issued to the Property Trustee.
4
9
"Indenture Event of Default" means that an event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01(a) of the Indenture has occurred and is continuing.
"Investment Company" means an "investment company" as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning specified in Section 3.08(g).
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York, Wilmington,
Delaware or Dallas, Texas are authorized or obligated by law, regulation or
executive order to remain closed.
"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority of Outstanding" Securities means, except as provided
in the penultimate paragraph of Section [6](b) of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities representing more than 50% of the outstanding Securities of such
class.
"1933 Act Registration Statement" has the meaning specified in
Section 3.13.
"1934 Act Registration Statement" has the meaning specified in
Section 3.13.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, any Vice Chairman of the Board, any Vice
President, the chief financial officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Sponsor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 2.04 shall be the Chairman of the Board,
President, Vice Chairman of the Board or any Vice President of the Sponsor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(i) a statement that the individual making such
certificate has read such covenant or condition;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate are based;
5
10
(iii) a statement that, in the opinion of such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether or not, in the opinion
of such individual, such condition or covenant has been
complied with.
"Opinion of Counsel" means a written opinion of counsel that
(i) may be counsel for the Trust, the Property Trustee or the Sponsor, (ii)
unless otherwise provided, may be an employee of the Sponsor but shall not be an
employee of the Trust or the Property Trustee, and (iii) shall be reasonably
acceptable to the Property Trustee. Any Opinion of Counsel pertaining to U.S.
Federal income tax matters may rely, inter alia, on published rulings or other
official pronouncements of the U.S. Internal Revenue Service.
["Option Closing Date" means the [Option Closing Date] as
specified in the Underwriting Agreement.]
"Original Declaration" has the meaning set forth in the
recitals above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning specified in Section 6.01.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
"Preferred Securities" has the meaning specified in Section
7.01(b).
"Preferred Securities Guarantee" means the Guarantee Agreement
dated as of __________, ____ of ACS and ______________, as initial guarantee
trustee thereunder, in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive
certificate in fully registered form representing a Preferred Security
substantially in the form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.01(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section
3.10(c)(i).
6
11
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Resignation Request" has the meaning specified in Section
5.02(c).
"Responsible Officer" means, when used with respect to the
Property Trustee, any officer within the corporate trust department of the
Property Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Property Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person's
knowledge of and familiarity with the particular subject and, in either case,
who shall have direct responsibility for the administration of this Declaration.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act
or any successor rule thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Section 4 of Exhibits B and C hereto.
"Sponsor" or "ACS" means Affiliated Computer Services, Inc., a
Delaware corporation, or any successor entity resulting from any merger,
consolidation, amalgamation or other business combination.
"Successor Delaware Trustee" has the meaning specified in
Section 5.02(a)(ii).
"Successor Entity" has the meaning specified in Section
3.18(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 5.02(a)(i).
"Successor Securities" has the meaning specified in Section
3.18(b)(i)(B).
"Super Majority" has the meaning specified in Section
2.06(a)(ii).
"Supplemental Indenture" means the _____ Supplemental
Indenture dated as of ________, ____ between ACS and the Debenture Trustee,
pursuant to which the Debentures are to be issued to the Property Trustee.
"10% of Outstanding" Securities means, except as provided in
the penultimate paragraph of Section [6](b) of Exhibit B hereto, Holder(s) of
outstanding Securities voting
7
12
together as a single class or, as the context may require, Holder(s) of
outstanding Preferred Securities or Common Securities, voting separately as a
class, who are the record owners of a relevant class of Securities representing
10% or more of the outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations,
including temporary regulations, promulgated under the Code by the United States
Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the recitals above.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement
dated as of __________, ____ among the Trust, the Sponsor and _______ and
_________, as [representatives of the several] underwriters [named therein].
"United States Person" means a United States person for United
States Federal income tax purposes.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be the
only Trustee which is a trustee for the purposes of the Trust Indenture Act.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
8
13
SECTION 2.02 Lists of Holders of Preferred Securities
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee (unless the Property Trustee is the
registrar for the Securities) (i) on each regular record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such record date, and (ii) at any other time, within 30 days of receipt by the
Trust of a written request for a List of Holders as of a date no more than 15
days before such List of Holders is given to the Property Trustee; provided that
in each case neither the Sponsor nor the Regular Trustees on behalf of the Trust
shall be obligated to provide such List of Holders at any time that the List of
Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Regular Trustees on behalf of the Trust.
The Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders given to it or
which it receives in the capacity as Paying Agent (if acting in such capacity);
provided that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Property Trustee
Within 60 days after May 15 of each year, commencing May 15,
____, the Property Trustee shall deliver to the Holders of the Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form, in the manner and at the times provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act. A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Property Trustee with the Sponsor, with each stock exchange or quotation system
upon which any Preferred Securities are listed or traded (if so listed or
traded) and also with the Commission. The Regular Trustees agree to notify the
Property Trustee and the Sponsor when any Preferred Securities become listed on
any stock exchange or quotation system and of any delisting thereof.
SECTION 2.04 Periodic Reports to the Property Trustee
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information (if any)
as required by Section 314(a)(1)-(3) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section 314(a)(4)
of the Trust Indenture Act shall be provided within 120 days of the end of each
Fiscal Year). Delivery of such reports, information and documents to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein, including the Sponsor's compliance with any of its covenants
hereunder (as to which the Property Trustee is entitled to
9
14
rely exclusively on Officers' Certificates or on certificates provided pursuant
to this Section 2.04).
SECTION 2.05 Evidence of Compliance with Conditions Precedent
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration which 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) may be given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver
(a) The Holders of a Majority of Outstanding Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences; provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of
greater than a majority in aggregate principal amount of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Declaration may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Preferred
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Event of Default
with respect to the Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of an Event of Default with respect to
the Preferred Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default with respect to
the Common Securities for all purposes of this Declaration without any further
act, vote or consent of the Holders of the Common Securities.
(b) The Holders of a Majority of Outstanding Common Securities
may, by vote, on behalf of the Holders of all of the Common Securities, waive
any past Event of Default with respect to the Common Securities and its
consequences; provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under
10
15
this Declaration as provided above in Section 2.06(a) or below
in this Section 2.06(b), the Event of Default under this
Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under this Declaration as provided above in Section 2.06(a) or
below in this Section 2.06(b), the Event of Default under this
Declaration may only be waived by the vote of the Holders of
at least the proportion in aggregate liquidation amount of the
Common Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures
outstanding;
provided, further, that the Holders of Common Securities will
be deemed to have waived any such Event of Default and all Events of Defaults
with respect to the Common Securities and their consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
in accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. In the event that any Event
of Default with respect to the Preferred Securities is waived by the Holders of
Preferred Securities as provided in this Declaration, the Holders of Common
Securities agree that such waiver shall also constitute the waiver of such Event
of Default with respect to the Common Securities for all purposes under this
Declaration without any further act, vote or consent of the Holders of the
Common Securities. Subject to the foregoing provisions of this Section 2.06(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.06(c) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.07 Disclosure of Information
The disclosure of information as to the names and addresses of
the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was derived,
shall not be deemed to be a violation of any existing law, or any law hereafter
enacted which does not specifically refer to Section 312 of the Trust Indenture
Act, nor shall the Property Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
11
16
SECTION 2.08 Provision of Information to ACS
The Regular Trustees shall provide ACS with such documents,
reports and other information with respect to the Trust and the Holders as are
necessary to permit ACS to comply with its obligations under this Article II,
Article II of the Preferred Securities Guarantee and Sections 312 and 314 of the
Trust Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.01 Name
The Trust continued by this Declaration is named "ACS Trust
[I] [II]" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of the Securities. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
SECTION 3.02 Office
The address of the principal office of the Trust is c/o
Affiliated Computer Services, Inc., 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx
00000. Upon ten days' written notice to the Holders, the Regular Trustees may
change the location of the Trust's principal office.
SECTION 3.03 Issuance of the Securities
The Sponsor, on behalf of the Trust and pursuant to the
Original Declaration, executed and delivered the Underwriting Agreement. On the
Closing Date and contemporaneously with the execution and delivery of this
Declaration, one or more of the Regular Trustees, in accordance with Section
7.01 and on behalf of the Trust, shall execute and deliver (i) one or more
Global Certificates, registered in the name of the nominee of the initial
Clearing Agency as specified in Section 9.04 for the benefit of the underwriters
named in the Underwriting Agreement, in an aggregate amount of ___________
Preferred Securities having an aggregate liquidation amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$___________, and (ii) to the Sponsor, one or more Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
________ Common Securities having an aggregate liquidation amount of
$____________, against receipt of the aggregate purchase price of such Common
Securities of $___________. [In the event and to the extent the over-allotment
option granted by the Trust and the Sponsor pursuant to the Underwriting
Agreement is exercised by such underwriters, on the Option Closing Date, the
Regular Trustees, in accordance with Section 7.01 and on behalf of the Trust,
shall execute and deliver (i) one or more Global Certificates, registered in the
name of the nominee of the initial Clearing Agency as specified in Section 9.04
for the benefit of the underwriters named in the Underwriting Agreement, in an
aggregate amount of up to _________ Preferred Securities having an aggregate
liquidation amount of up to $_________, against receipt of the aggregate
purchase price of such Preferred Securities of up to $_________, and (ii) to the
Sponsor, one or more Common Securities Certificates, registered in the name of
the nominee of the Sponsor, in an aggregate amount of up to _________ Common
Securities having an
12
17
aggregate liquidation amount of up to $_________, against receipt of the
aggregate purchase price of such Common Securities of up to $_________.]
SECTION 3.04 Purchase of Debentures
On the Closing Date and contemporaneously with the execution
and delivery of this Declaration, one or more of the Regular Trustees, on behalf
of the Trust, shall purchase from the Sponsor with the proceeds received by the
Trust from the sale of the Securities on such date pursuant to Section 3.03, at
a purchase price of 100% of the principal amount thereof, Debentures, registered
in the name of the Property Trustee and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustees, on behalf of the Trust, shall deliver or cause
to be delivered to the Sponsor the sum of $___________. [In the event the
over-allotment option granted by the Trust and the Sponsor with respect to the
Preferred Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date, the Regular Trustees, on
behalf of the Trust, shall purchase from the Sponsor with the proceeds received
by the Trust from the sale of the Securities on such date pursuant to Section
3.03, at a purchase price of 100% of the principal amount thereof, additional
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount of up to $________, and, in satisfaction of the
purchase price for such Debentures, the Regular Trustees, on behalf of the
Trust, shall deliver or cause to be delivered to the Sponsor an amount equal to
the aggregate principal amount of the Debentures being purchased.]
SECTION 3.05 Purpose
The exclusive purposes and functions of the Trust are: (a)(i)
to issue and sell Preferred Securities for cash and use the proceeds of such
sales to purchase from ACS Debentures issued under the Indenture having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and with the issuance of the Preferred Securities; and
(iii) to issue and sell Common Securities to ACS for cash and use the proceeds
of such sale to purchase from ACS Debentures issued under the Indenture having
an aggregate principal amount equal to the aggregate liquidation amount of the
Common Securities so issued and sold; and (b) except as otherwise limited
herein, to engage in only those other activities necessary or incidental
thereto, including such other activities specifically authorized in this
Declaration. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, mortgage or pledge any of its assets or at any time
while the Securities are outstanding, otherwise undertake (or permit to be
undertaken) any activity that would result in or cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust.
13
18
SECTION 3.06 Authority
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust, and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.07 Title to Property of the Trust
Except as provided in Section 3.10 with respect to the
Debentures and the Property Account or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have undivided beneficial interests in the assets of the Trust.
SECTION 3.08 Powers and Duties of the Regular Trustees
Each Regular Trustee shall be a United States Person. The
Regular Trustees shall have the exclusive power, authority and duty to cause the
Trust, and shall cause the Trust, to engage in the following activities:
(a) to issue Preferred Securities and Common Securities, in
each case in accordance with this Declaration; provided, however, that the Trust
may issue no more than one series of Preferred Securities and no more than one
series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities and the issuance of Securities
shall be limited to [(x)] a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date [and (y) any subsequent
issuance of both Preferred Securities and Common Securities on the Option
Closing Date pursuant to an exercise of the over-allotment option granted to the
underwriters in the Underwriting Agreement];
(b) to execute, deliver and perform the Depositary Agreement
on behalf of the Trust;
(c) to acquire as trust assets Debentures with the proceeds of
the sale of the Preferred Securities and the Common Securities; provided,
however, that the Regular Trustees shall cause legal title to all of the
Debentures to be vested in, and the Debentures to be held of record in the name
of, the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Common Securities;
(d) if and to the extent that the Sponsor on behalf of the
Trust has not already done so, to cause the Trust to enter into the Underwriting
Agreement and/or such other agreements and arrangements as may be necessary or
desirable in connection with the sale of the Preferred Securities to the initial
purchasers thereof and the consummation thereof, and to take
14
19
all action, and exercise all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Preferred Securities and Common Securities as to such
actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.10, the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be
required of the Regular Trustee, pursuant to the terms of the Securities set
forth in Exhibits B and C hereto;
(n) to take all actions which may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Securities
or to enable the Trust to effect the purposes for which the Trust has been
created;
(o) to take all actions, not inconsistent with this
Declaration, the Certificate of Trust or applicable law, which the Regular
Trustees determine in their discretion to be necessary or desirable in carrying
out the purposes of the Trust and the activities of the Trust as set out in this
Section 3.08, including, but not limited to:
15
20
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the
Debentures will be treated as indebtedness of the Sponsor for
United States Federal income tax purposes;
(p) to take all actions necessary to cause all applicable tax
returns and tax information reports and forms that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular Trustees, on
behalf of the Trust, and to comply with any applicable requirements imposed by
any taxing authority on holders of instruments treated as indebtedness for
United States Federal income tax purposes;
(q) subject to the requirements of Rule 3a-7 (if the Trust is
excluded from the definition of an Investment Company solely by reason of Rule
3a-7) and Section 317(b) of the Trust Indenture Act, to appoint one or more
Paying Agents in addition to the Property Trustee; and
(r) to execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in
this Section 3.08 in a manner which is consistent with the purposes and
functions of the Trust set out in Section 3.05, and the Regular Trustees shall
not take any action which is inconsistent with the purposes and functions of the
Trust set forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees shall have
none of the powers or any of the authority of the Property Trustee set forth in
Section 3.10.
The Regular Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.08 shall be reimbursed by the Sponsor.
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees
The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than in
connection with the purposes of the Trust or other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall not cause the Trust to:
(a) invest any proceeds received by the Trust as a result of
holding the Debentures, but the Trust shall promptly distribute from the
Property Account all such proceeds to Holders of Securities pursuant to the
terms of this Declaration and of the Securities;
16
21
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever,
except as otherwise expressly provided herein;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money;
(h) (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee or exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures, without, in
each case, obtaining the prior approval of the Holders of a Majority of
Outstanding Securities;
(i) revoke any action previously authorized or approved by a
vote of the Holders of Preferred Securities except by subsequent vote of such
Holders;
(j) consent to any amendment, modification or termination of
the Indenture or the Debentures, where such consent shall be required, unless in
the case of this clause (j) the Property Trustee shall have received an Opinion
of Counsel experienced in such matters to the effect that such amendment,
modification or termination will not cause more than a remote risk that for
United States Federal income tax purposes the Trust will not be classified as a
grantor trust;
(k) take or consent to any action that would result in the
placement of a lien, pledge, charge, mortgage or other encumbrance on any of the
Trust property;
(l) vary the investment of certificate holders of the Trust
(within the meaning of Treasury Regulation Section 301.7701-4(c)); or
(m) after the date hereof, enter into any contract or
agreement (other than any depositary agreement or any agreement with any
securities exchange or automated quotation system) that does not expressly
provide that the Holders of Preferred Securities, in their capacities as such,
have limited liability (in accordance with the provisions of the Business Trust
Act) for the liabilities and obligations of the Trust, which express provision
shall be in substantially the following form:
The Holders of the Preferred Securities, in their capacities
as such, shall not be personally liable for any liabilities or obligations of
the Trust arising out of this Declaration, and the parties hereto hereby agree
that the Holders of the Preferred Securities, in their capacities as
17
22
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 3.10 Powers and Duties of the Property Trustee
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or, if the Property
Trustee does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing bank account (the "Property Account") in the name of
and under the exclusive control of the Property Trustee on
behalf of the Holders of the Securities and, on the receipt of
payments of funds made in respect of the Debentures held by
the Property Trustee, deposit such funds into the Property
Account and, without any further acts of the Property Trustee
or the Regular Trustees, promptly make payments to the Holders
of the Preferred Securities and Common Securities from the
Property Account in accordance with Section 6.01. Funds in the
Property Account shall be held uninvested, and without
liability for interest thereon, until disbursed in accordance
with this Declaration. The Property Account shall be an
account which is maintained with a banking institution whose
long term unsecured indebtedness is rated by a "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act, at least investment grade;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the redemption
of the Preferred Securities and the Common Securities to the
extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the
Regular Trustees in accordance with the terms of the Preferred
Securities and the Common Securities, engage in such
ministerial activities as shall be necessary or appropriate to
effect promptly pursuant to terms of the Securities the
distribution of Debentures to Holders of Securities upon the
election of the Holder of Common Securities to distribute the
Debentures to Holders of Securities and dissolve the Trust;
(iv) have the legal power to exercise all of the
rights, powers and privileges of a holder of the Debentures
under the Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee, subject to Section 3.10(e),
18
23
shall for the benefit of the Holders of the Securities,
enforce its rights as holder of the Debentures under the
Indenture, subject to the rights of the Holders of the
Preferred Securities pursuant to the terms of this
Declaration, the Business Trust Act and the Trust Indenture
Act; and
(v) be a United States Person.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities set forth in Exhibits B and C hereto.
(e) If an Event of Default has occurred and is continuing,
then the Holders of a Majority of Outstanding Preferred Securities will have,
subject to Section 3.12(c)(iv), the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property Trustee
under this Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures. If the
Property Trustee fails to enforce its rights under the Debentures, a Holder of
Preferred Securities may, to the fullest extent permitted by law, after a period
of 30 days has elapsed since such Holder's written request to the Property
Trustee to enforce such rights, institute a legal proceeding directly against
the Sponsor to enforce the Property Trustee's rights under the Debentures
without first instituting any legal proceeding against the Property Trustee or
any other Person; provided that, if an Event of Default has occurred and is
continuing and such event is attributed to the failure of the Sponsor to pay
principal of, any premium or interest on or any Additional Amounts with respect
to the Debentures on the date such amounts are otherwise payable (or in the case
of redemption, on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
such amounts on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Holder Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Holder Direct Action, the Sponsor will be subrogated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Sponsor to such Holders of Preferred Securities in such Holder Direct
Action. Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) All moneys deposited in the Property Account and all
Debentures held by the Property Trustee for the benefit of the Holders of the
Securities will not be subject to any right, charge, security interest, lien or
claim of any kind in favor of, or for the benefit of the Property Trustee or its
agents or their creditors.
(g) The Property Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities actually known to a
Responsible Officer of the Property Trustee, transmit by mail, first class
postage prepaid, to the Holders of the Securities, as their names and addresses
appear upon the register, notice of such default with respect to the Securities
known to the Property Trustee, unless such default shall have been cured before
the giving of such notice (the term "default" for the purposes of this Section
3.10(g) being hereby defined to be an Indenture Event of Default, not including
any periods of grace provided in the
19
24
Indenture and irrespective of the giving of any notice provided therein);
provided that, except in the case of default in the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities. The Property Trustee shall not be deemed to have
knowledge of any default, except (i) a default in the payment of principal,
premium or interest on the Debentures or (ii) any default as to which the
Property Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Declaration shall have obtained written
notice of such default.
(h) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds thereof distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed
and accepted that appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in respect
of the Common Securities and, if the Preferred Securities are not in book entry
only form, the Preferred Securities and, subject to Section 3.08(q), may
authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
Additional Amounts, redemption payments or liquidation payments on behalf of the
Trust with respect to the Preferred Securities. Any such Paying Agent shall
comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Property Trustee, after consultation with the Regular Trustees,
at any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee, subject to Section 3.08(q).
(j) The Property Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from ACS of its
election to defer payments of interest on or any Additional Amounts with respect
to the Debentures by extending the interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Property Trustee shall
have none of the powers or the authority of the Regular Trustees set forth in
Section 3.08.
(l) The Property Trustee shall exercise the powers, duties and
rights set forth in this Section 3.10 and Section 3.12 in a manner which is
consistent with the purposes and functions of the Trust set out in Section 3.05,
and the Property Trustee shall not take any action which is inconsistent with
the purposes and functions of the Trust set forth in Section 3.05.
SECTION 3.11 Delaware Trustee
(a) Notwithstanding any other provision of this Declaration,
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 Regular
Trustees or the Property Trustee described in this
20
25
Declaration. The Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust Act
and shall be a United States Person.
(b) It is expressly understood and agreed by the parties
hereto that in fulfilling its obligations as Delaware Trustee hereunder on
behalf of the Trust, (i) any agreements or instruments executed and delivered by
Wilmington Trust Company are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Declaration in the exercise
of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Wilmington Trust Company in its individual
capacity but is made and intended for the purpose of binding only the Trust, and
(iii) under no circumstances shall Wilmington Trust Company in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Declaration, except if such breach or failure is due to any gross negligence or
willful misconduct of the Delaware Trustee. The Delaware Trustee shall be
entitled to all of the same rights, protections, indemnities and immunities as
the Property Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee
(a) The Property Trustee, before the occurrence of an Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an 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 Declaration, and the
Property Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Property Trustee; 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
21
26
certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this
Declaration; provided, however, that in the case of
any such certificates or opinions that by any
provision hereof or the Trust Indenture Act are
specifically required to be 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 Declaration or
the Trust Indenture Act, as the case may be;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(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
not less than a Majority of Outstanding Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee hereunder or
under the Indenture, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
and
(iv) no provision of this Declaration 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 it 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 Declaration
or adequate indemnity against such risk or liability is not
furnished to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part and, if the Trust is excluded
from the definition of Investment Company solely by means of
Rule 3a-7, subject to the requirements of Rule 3a-7, request
and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(ii) the Property Trustee (A) may consult with
counsel selected by it in good faith and with due care and the
written advice or opinion of such counsel with respect to
legal matters shall be full and complete 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 and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
22
27
(iii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, and the
Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
by it in good faith and with due care;
(iv) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any
Holder, unless such Holder shall have furnished to the
Property Trustee security and indemnity satisfactory to the
Property Trustee against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall
relieve the Property Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or
waived) to exercise such of the rights and powers vested in it
by this Declaration, and to use the same degree of care and
skill in this exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs;
(v) any action taken by the Property Trustee or its
agents hereunder shall bind the Holders of the Securities, and
the signature of the Property Trustee or its agents alone
shall be sufficient and effective to perform any such action;
and no third party shall be required to inquire as to the
authority of the Property Trustee to so act, or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action; and
(vi) whenever in the administration of this
Declaration the Property Trustee shall deem it necessary or
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Property Trustee may request instructions from the Holders of
the Securities, which instructions shall be given by the
Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee
under the terms of the Securities in respect of such remedy,
right or action.
(d) The Property Trustee, in its individual or any other
capacity, may become the owner or pledgee of Preferred Securities and may
otherwise deal with the Sponsor with the same rights it would have if it were
not the Property Trustee.
(e) Except as required by Section 3.10(c) hereof, all moneys
received by the Property Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Property Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree in writing to pay thereon.
(f) The Sponsor covenants and agrees to pay to the Property
Trustee from time to time, and the Property Trustee shall be entitled to, such
compensation as the Regular Trustees and the Property Trustee shall from time to
time agree in writing (which shall not be
23
28
limited by any provision of law in regard to the compensation of a Property
Trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Property Trustee, and the Sponsor will pay or
reimburse the Property Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Property Trustee in
accordance with any of the provisions of this Declaration (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Sponsor also covenants to indemnify each of the Property Trustee or any
predecessor Property Trustee and their officers, agents, directors and employees
for, and to hold them harmless against, any and all loss, liability, damage,
claim, action, cost or expense including taxes (other than taxes based upon,
measured by or determined by the income, profit, franchise or doing business of
the Property Trustee) of any kind and nature whatsoever incurred without
negligence or bad faith on the part of the Property Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim (whether
asserted by the Sponsor, any Holder or any other Person) of liability in the
premises. The provisions of this subpart (f) of this Section 3.12 shall survive
the termination of this Declaration and resignation or removal of the Property
Trustee.
(g) Whether or not expressly stated, every provision of this
Declaration pertaining to the Property Trustee shall be subject to this Section
3.12.
SECTION 3.13 Registration Statement and Related Matters
In accordance with the Original Declaration, ACS, as the
sponsor of the Trust, was authorized (a) to prepare and file with the Commission
and execute, in each case on behalf of the Trust, (i) a Registration Statement
on Form S-3 (Registration No. 333-_______) (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
the Preferred Securities and certain other securities of the Sponsor and (ii) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration of the Preferred Securities under Section 12 of the Exchange
Act; (b) if the Sponsor deemed it desirable, to prepare and file with New York
Stock Exchange, Inc. or any other automated quotation system, exchange or
over-the-counter market (collectively, the "Exchanges") and execute on behalf of
the Trust a listing application or applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any Exchange; (c)
to prepare and file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as the Sponsor, on behalf of
the Trust, deemed necessary or desirable to register the Preferred Securities
under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, deemed necessary or desirable; and (d) to execute on behalf
of the Trust the Underwriting Agreement. In the event that any filing referred
to in clauses (a)-(c) above is required by the rules and regulations of the
Commission, any Exchange, the National Association of Securities Dealers, Inc.
or state securities or blue sky laws, to be executed on behalf of the Trust by
the Regular Trustees, the Regular Trustees, in their capacities as Trustee of
24
29
the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing. In connection with all of the
foregoing, each Regular Trustee, solely in its capacity as Trustee of the Trust,
has constituted and appointed, and hereby confirms the appointment of, Xxxxxxx
X. Xxxx, Xxxx X. Xxxx and Xxxxxxx X. Xxxxxxxxx, Xx., and each of them, as his,
her or its, as the case may be, true and lawful attorneys-in-fact, and agents,
with full power of substitution and resubstitution, for such Trustee or in such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SECTION 3.14 Filing of Amendments to Certificate of Trust
The Certificate of Trust as filed with the Secretary of State
of the State of Delaware on July 25, 2001 is attached hereto as Exhibit A. On or
after the date of execution of this Declaration, the Regular Trustees shall
cause the filing with the Secretary of State of the State of Delaware of such
amendments, if any, to the Certificate of Trust as the Regular Trustees shall
deem necessary or desirable.
SECTION 3.15 Execution of Documents by the Regular Trustees
Except as otherwise required by the Business Trust Act with
respect to the Certificate of Trust or otherwise, any Regular Trustee, or if
there is only one, such Regular Trustee is authorized to execute and deliver on
behalf of the Trust any documents which the Regular Trustees have the power and
authority to execute or deliver pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of
Securities
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.17 Duration of the Trust
The Trust, absent dissolution pursuant to the provisions of
Article VIII hereof, shall continue without dissolution until ___________, ____.
SECTION 3.18 Mergers
(a) The Trust may not merge with or into, convert into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially
25
30
as an entirety to any Person, except as described in Section 3.18(b) and (c) of
this Declaration or Section 3(a) of Exhibits B or C to the Declaration.
(b) The Trust may, at the request of a Majority of Outstanding
Common Securities, with the consent of the Regular Trustees or, if there are
more than two, a majority of the Regular Trustees and without the consent of the
Holders of Preferred Securities, the Delaware Trustee or the Property Trustee,
merge with or into, convert into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, a trust organized as such under the laws of any
State of the United States; provided that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations
of the Trust under the Securities and this
Declaration; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as
the Successor Securities rank the same as the
Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) a Majority of Outstanding Common Securities, by
vote, expressly appoints a trustee of the Successor Entity
that possesses the same powers and duties as the Property
Trustee as the holder of the Debentures;
(iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another
organization in which the Preferred Securities are then listed
or quoted, if any;
(iv) if the Preferred Securities (including any
Successor Securities) are rated (including any public
information rating) by any nationally recognized statistical
rating organization prior to such transaction, such merger,
conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities), or if the
Debentures are so rated, the Debentures, to be downgraded by
any nationally recognized statistical rating organization;
(v) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders (including the holders of any Successor
Securities) in any material respect (other than with respect
to any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has purposes substantially
identical to those of the Trust;
26
31
(vii) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease would
not cause any of the following:
(A) the rights, preferences and privileges
of the Holders (including the holders of any
Successor Securities) to be adversely affected in any
material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
(B) the Trust (or the Successor Entity) to
be required to register as an Investment Company
under the Investment Company Act; or
(C) the Trust (or the Successor Entity) to
be classified as other than a grantor trust for
United States Federal income tax purposes;
and the Sponsor and the Regular Trustees shall have received
an Opinion of Counsel, who shall not be an employee of the Sponsor and who shall
be experienced in such matters, to that effect;
(viii) prior to such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Sponsor has received an Officers' Certificate
that such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders
(including the holders of any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the new entity);
(ix) the Sponsor or any permitted successor or
assignee under the Preferred Securities Guarantee guarantees
the obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Preferred
Securities Guarantee; and
(x) there shall have been furnished to the Property
Trustee an Officers' Certificate and an Opinion of Counsel,
each to the effect that all conditions precedent in this
Declaration to such transaction have been satisfied.
(c) Notwithstanding Section 3.18(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, convert into, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other Person or permit any
other Person to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity not to be
classified as a grantor trust for United States Federal income tax purposes.
SECTION 3.19 Property Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding
27
32
relative to the Trust or any other obligor upon the Securities or the property
of the Trust or of such other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Securities or the rights of any Holder thereof to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE IV
SPONSOR
SECTION 4.01 Purchase of Common Securities by the Sponsor
On the Closing Date, the Sponsor will purchase Common
Securities issued by the Trust at the same time as the Preferred Securities to
be issued on such date are issued, such purchase to be in an amount equal to or
greater than 3% of the total capital of the Trust. [In the event and to the
extent the over-allotment option granted by the Trust and the Sponsor pursuant
to the Underwriting Agreement is exercised by such underwriters, on the Option
Closing Date, the Sponsor will purchase Common Securities issued by the Trust at
the same time as the Preferred Securities to be issued on such date are issued,
such purchase to be in an amount equal to or greater than 3% of the total
capital of the Trust.]
28
33
SECTION 4.02 Expenses
(a) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor, shall be responsible for and
shall pay for all debts and obligations (other than with respect to the
Securities) and all current and future costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization
of the Trust, the issuance of the Preferred Securities to initial purchasers
thereof (including any commissions payable to such purchasers), the fees and
expenses (including reasonable counsel fees and expenses) of the Trustees
(including any amounts payable under Article X), the costs and expenses relating
to the operation of the Trust, including, without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition and disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor, shall pay any and all taxes
(other than United States withholding taxes attributable to the Trust or its
assets) of the Trust and all liabilities, costs and expenses of the Trust with
respect to such taxes.
(c) The Sponsor's obligations under this Section 4.02 shall be
for the benefit of, and shall be enforceable by, any Person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor, and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor.
(d) The Sponsor shall be subrogated to all (if any) rights of
the Trust in respect of any amounts paid to any Creditor by the Sponsor under
this Section 4.02.
ARTICLE V
TRUSTEES
SECTION 5.01 Number of Trustees; Qualifications
(a) The number of Trustees initially shall be three (3).
Subject to Section 5.02(a), at any time and without cause (i) before the
issuance of the Securities, the Sponsor may, by written instrument, increase or
decrease the number of, and appoint, remove and replace, the Trustees, and (ii)
after the issuance of the Securities the number of Trustees may be increased or
decreased solely by, and Trustees may be appointed, removed or replaced solely
by, vote of Holders of Common Securities representing a Majority of Outstanding
Common Securities voting as a class; provided that in any case:
(i) the number of Trustees shall be at least three
(3);
29
34
(ii) if required by the Business Trust Act, one
Trustee (the "Delaware Trustee") shall be either a natural
person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of
business in the State of Delaware and otherwise is permitted
to act as a Trustee hereunder under the laws of the State of
Delaware, except that if the Property Trustee has its
principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the
laws of the State of Delaware, then the Property Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no
application;
(iii) there shall at all times be a Property Trustee
hereunder which shall satisfy the requirements of Section
5.01(c);
(iv) each Trustee shall be a United States Person;
and
(v) each Trustee, including any employee, agent,
manager, contractor, advisor, consultant and attorney employed
or otherwise engaged by, or any other delegee of, any Trustee,
shall at all times act as Trustee in its individual capacity
on its own behalf and will not at any time, in its capacity as
Trustee, be under (or subject to) the control or direction of
ACS (pursuant to a contractual arrangement or otherwise).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed representatives.
(b) The initial Regular Trustees shall be:
Xxxxxxx X. Xxxxxxxxx, Xx. and
Xxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
(c) There shall at all times be one Trustee which shall act as
the Property Trustee. In order to act as the Property Trustee hereunder, such
Trustee shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation or national banking association
organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the
District of Columbia, or a corporation, national banking
association or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such
corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.01(c)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
30
35
surplus as set forth in its most recent report of condition so
published; and
(iii) if the Trust is excluded from the definition of
an Investment Company solely by reason of Rule 3a-7 and to the
extent Rule 3a-7 requires a trustee having certain
qualifications to hold title to the "eligible assets" (as
defined in Rule 3a-7) of the Trust, the Property Trustee shall
possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.02(c). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if such Holders were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act. The
Preferred Securities Guarantee and the Indenture shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee
is Wilmington Trust Company, whose address is as set forth in Section 14.01(b).
(d) The initial Trustee which shall serve as the Delaware
Trustee is Wilmington Trust Company, whose address is as set forth in Section
14.01(c).
(e) Any action taken by the Holders of Common Securities
pursuant to this Article V shall be taken at a meeting of the Holders of Common
Securities convened for such purpose or by written consent as provided in
Section 12.02.
(f) No amendment may be made to this Section 5.01 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees, except with the consent of each Holder of Common
Securities.
SECTION 5.02 Appointment, Removal and Resignation of the Trustees
(a) (i) The Trustee that acts as the Property Trustee shall
not be removed in accordance with Section 5.01(a) until a successor Trustee
possessing the qualifications to act as the Property Trustee under Section
5.01(c) (a "Successor Property Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Property
Trustee and delivered to the Regular Trustees, the Sponsor and the Property
Trustee being removed; and
(ii) the Trustee that acts as the Delaware Trustee
shall not be removed in accordance with Section 5.01(a) until a
successor Trustee possessing the qualifications to act as the Delaware
Trustee under Section 5.01(a)(iii) (a "Successor Delaware Trustee") has
been appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the Delaware Trustee being removed.
31
36
(b) A Trustee appointed to office shall hold such office until
his successor shall have been appointed or until his death, removal or
resignation.
(c) Any Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as
the Property Trustee shall be effective until:
(A) a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Regular Trustees, the
Sponsor and the resigning Property Trustee; or
(B) if the Trust is excluded from the
definition of an Investment Company solely by reason
of Rule 3a-7, until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and
the resigning Delaware Trustee.
(d) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
Section 5.01 and this Section 5.02 within 60 days after delivery of a notice of
removal or a Resignation Request, the Property Trustee or Delaware Trustee being
removed or resigning, as the case may be, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as the case may be. Such court may thereupon after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(e) No amendment may be made to this Section 5.02 which would
change any rights with respect to the appointment or removal of Trustees, except
with the consent of each Holder of Common Securities.
(f) Any successor Delaware Trustee hereunder shall promptly
file an amendment to the Certificate of Trust with the Delaware Secretary of
State identifying the name and address of such Successor Delaware Trustee in the
State of Delaware.
SECTION 5.03 Vacancies Among the Trustees
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.01 or if the number of
Trustees is increased pursuant to Section
32
37
5.01, a vacancy shall occur. A resolution certifying the existence of such
vacancy by a majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with the requirements of this Article V.
SECTION 5.04 Effect of Vacancies
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee, or any one of them, shall not operate to dissolve, terminate or annul
the Trust. Whenever a vacancy in the number of Regular Trustees shall occur
until such vacancy is filled as provided in this Article V, the Regular Trustees
in office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.05 Meetings
Meetings of the Regular Trustees shall be held from time to
time upon the call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of the Regular
Trustees. Notice of any in-person meeting of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meeting of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before such meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless otherwise provided in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting and without prior notice by the
unanimous written consent of the Regular Trustees.
SECTION 5.06 Delegation of Power
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any registration statement or
amendment thereto or other document or schedule filed with the Commission or
making any other governmental filing (including, without limitation, the filings
referred to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments, either in the name of the
Trust or the names of the Regular Trustees or otherwise, as
33
38
the Regular Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth in this Declaration.
SECTION 5.07 Merger, Conversion, Consolidation or Succession to
Business
Any Person into which the Property Trustee or the Delaware
Trustee or any Regular Trustee that is not a natural person, as the case may be,
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee or the Regular Trustees, as the case may be,
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Property Trustee or the Delaware Trustee or any
Regular Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee or that Regular Trustee, as the case may be,
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; provided, however, that the
Delaware Trustee shall file an amendment to the Certificate of Trust as required
by the Business Trust Act.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.01 Distributions
Holders shall receive periodic distributions, redemption
payments, liquidation distributions and any other payments in accordance with
the applicable terms of the relevant Holder's Securities as set forth in
Exhibits B and C hereto ("Distributions"). If and to the extent that ACS makes a
payment of principal of, any premium or interest on or any Additional Amounts
with respect to the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, promptly to make a
Distribution of the Payment Amount to Holders in accordance with the terms of
the Securities as set forth in Exhibits B and C hereto. The record dates and
payment dates for Distributions shall be the same as the record dates and
payment dates for the Debentures held by the Property Trustee.
ARTICLE VII
ISSUANCE OF THE SECURITIES
SECTION 7.01 General Provisions Regarding the Securities
(a) The Regular Trustees shall issue the Securities on behalf
of the Trust in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.01(b) and for
the consideration specified in Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust
one class of preferred securities representing preferred undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Exhibit B (the "Preferred Securities") hereto, which terms are incorporated by
reference in, and made a part of, this Declaration as if specifically set forth
herein, and one class of common securities representing common undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Exhibit C (the "Common
34
39
Securities") hereto, which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein. The Trust shall
have no securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
one or more of the Regular Trustees. Such signatures may be the manual or
facsimile signatures of the present or any future Regular Trustee. Typographical
and other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
who shall have signed any of the Certificates shall cease to be such Regular
Trustee before the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons as, at the actual date of the
execution of such Certificate, shall be the Regular Trustees, although at the
date of the execution and delivery of this Declaration any such person was not a
Regular Trustee. Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or automated
quotation system on which Securities may be listed or traded, or with any rule
or regulation of the Clearing Agency, or to conform to usage. Pending the
preparation of definitive Certificates, one or more of the Regular Trustees on
behalf of the Trust may execute temporary Certificates (printed, lithographed or
typewritten), in substantially the form of the definitive Certificates in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Regular Trustees. Each temporary Certificate shall be executed by the one or
more of Regular Trustees on behalf of the Trust upon the same conditions and in
substantially the same manner, and with like effect, as definitive Certificates.
Without unnecessary delay, the Regular Trustees on behalf of the Trust will
execute and furnish definitive Certificates and thereupon any or all temporary
Certificates may be surrendered to the transfer agent and registrar in exchange
therefor (without charge to the Holders). Each Preferred Security Certificate,
whether in temporary or definitive form, shall be countersigned upon receipt of
a written order of the Trust signed by one Regular Trustee, by the manual
signature of an authorized signatory of the Person acting as registrar and
transfer agent for the Preferred Securities, which shall initially be the
Property Trustee.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by this Declaration.
35
40
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to ACS the
$10 constituting initial trust assets as set forth in the Original Declaration.
SECTION 7.02 [Conversion Agent
The Trust shall maintain an office or agency where Preferred
Securities may be presented for conversion pursuant to the terms thereof set
forth in Exhibit B hereto ("Conversion Agent"). The Trust may appoint the
Conversion Agent and may appoint one or more additional Conversion Agents in
such other locations as it may determine. The term "Conversion Agent" includes
any additional Conversion Agent. The Trust may change any Conversion Agent
without prior notice to any Holders. If the Trust fails to appoint or maintain
another entity as Conversion Agent, the Property Trustee will act as such. The
Property Trustee or any of its Affiliates may act as Conversion Agent. The
Conversion Agent shall be entitled to the rights and protections extended to the
Property Trustee when acting in such capacity.
The Property Trustee is hereby initially appointed as the
Conversion Agent for the Preferred Securities.]
ARTICLE VIII
DISSOLUTION OF THE TRUST
SECTION 8.01 Dissolution of the Trust
The Trust shall dissolve:
(a) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the Holders of the Securities in accordance with the terms of the Securities;
or
(b) when all of the Debentures shall have been distributed to
the Holders of the Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(c) upon the expiration of the term of the Trust as set forth
in Section 3.17; or
(d) upon a decree of judicial dissolution;
(e) upon the occurrence of an Indenture Event of Default set
forth in Section 6.01(4) or (5) of the Indenture with respect to ACS or the
Holder of the Common Securities [; or
(f) upon the distribution of shares of Common Stock to all
Holders upon conversion of all outstanding Securities].
Upon dissolution and the completion of the winding up of the
affairs of the Trust, the Trust and this Declaration shall terminate when a
certificate of cancellation is filed by the Regular Trustees with the Secretary
of State of the State of Delaware. The Regular Trustees
36
41
shall so file such a certificate as soon as practicable after the occurrence of
an event referred to in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article X shall
survive the dissolution and termination of the Trust and this Declaration.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.01 Transfer of Securities
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) The Holder of the Common Securities may not transfer the
Common Securities except to the Sponsor or an Affiliate thereof in compliance
with applicable law (including the Securities Act and applicable state
securities and blue sky laws). Upon any such transfer, such Holder shall deliver
to the Trustees a certificate or affidavit executed by or on behalf of such
Holder that the transfer is in compliance with this Section 9.01(c). To the
fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in this Section 9.01(c) shall be null and void.
SECTION 9.02 Transfer of Certificates
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees and
the transfer agent and registrar may require) in respect of any tax or other
government charges which may be imposed in relation to it. Upon surrender for
registration of transfer of any Certificate, one or more of the Regular Trustees
shall cause one or more new Certificates to be issued in the name of the
designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees and the transfer agent and
registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing. Each Certificate surrendered for registration of transfer shall be
canceled or caused to be canceled by the Regular Trustees. A transferee of a
Certificate shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Declaration.
SECTION 9.03 Deemed Security Holders
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the Trust as the
sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
37
42
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trustees shall
have actual or other notice thereof.
SECTION 9.04 Book Entry Interests
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Security Certificates, on original issuance
[(including Preferred Securities, if any, issued on the Option Closing Date
pursuant to the exercise of the over-allotment option set forth in the
Underwriting Agreement)], will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.07. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and, except as set forth herein in Section
9.07 or in Rule 3a-7 (if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7) with respect to the Property
Trustee, shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04
conflict with any other provisions of this Declaration, the provisions of this
Section 9.04 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants; provided that solely for the
purposes of determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Declaration, so long as
definitive Preferred Security Certificates have not been issued (pursuant to
Section 9.07 hereof), the Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Trustees by the Clearing Agency setting forth the Preferred Security
Beneficial Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
SECTION 9.05 Notices to Holders of Certificates
Whenever a notice or other communication to the Holders is
required to be given under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been
38
43
issued pursuant to Section 9.07, the relevant Trustees shall give all such
notices and communications, specified herein to be given to Holders of Preferred
Securities, to the Clearing Agency and, with respect to any Preferred Security
Certificate registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Trustees shall have no notice obligations to the Preferred
Security Beneficial Owners.
SECTION 9.06 Appointment of Successor Clearing Agency
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to the Preferred Securities.
SECTION 9.07 Definitive Preferred Securities Certificates
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06, (ii) an Event of Default has occurred with respect to
the Preferred Securities and is continuing and the Property Trustee has received
a request from the Clearing Agency to issue Definitive Preferred Security
Certificates in lieu of all or a portion of the Global Certificates (in which
case the Regular Trustees shall deliver such Definitive Preferred Security
Certificates within 30 days of such request) or (iii) the Regular Trustees elect
after consultation with the Sponsor to terminate the book entry system through
the Clearing Agency with respect to the Preferred Securities, then (x)
Definitive Preferred Security Certificates shall be prepared by the Regular
Trustees on behalf of the Trust with respect to such Preferred Securities and
(y) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Preferred Security Certificates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the Clearing Agency.
Upon such event, the Regular Trustees shall give notice thereof to the Debenture
Trustee. Neither the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively rely on, and
shall be protected in relying on, such instructions.
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates
If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b) there
shall be delivered to the Regular Trustees such security or indemnity as may be
required by them to keep each of them and the Trust harmless, then in the
absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, one or more of the Regular Trustees on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.08,
the Regular Trustees 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 Certificate issued pursuant to this Section 9.08 shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
39
44
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.01 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of Securities, in their capacities as Holders, shall be entitled to the
same limitation of liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 10.02 Indemnification
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Declaration, 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 gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions.
(b) The provisions of this Section 10.02 shall survive the
termination of this Declaration or the resignation or removal of any Trustee.
SECTION 10.03 Outside Business
The Sponsor and any Trustee (in the case of the Property
Trustee, subject to Section 5.01(c)) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and
40
45
the Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Sponsor nor any Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and the Sponsor or
any Trustee shall have the right to take for its own account (individually or as
a partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor or may act
as depository or trustee for, or, except as provided in Section 5.01(c), agent
in connection with, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or any of its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.01 Fiscal Year
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.02 Certain Accounting Matters
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes.
(b) If required by applicable law, the Regular Trustees shall,
as soon as available after the end of each Fiscal Year of the Trust, cause to be
prepared and mailed to each Holder of Securities unaudited financial statements
of the Trust for such Fiscal Year, prepared in accordance with generally
accepted accounting principles; provided that if the Trust is required to comply
with the periodic reporting requirements of Section 13(a) or 15(d) of the
Exchange Act, such financial statements for such Fiscal Year shall be examined
and reported on by a firm of independent certified public accountants selected
by the Regular Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be duly prepared and
mailed to each Holder of Securities any United States Federal income tax
information statement or form required by the Code or the Treasury Regulations,
containing such information with regard to the Securities held by each Holder as
is required by the Code or the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements or forms within 30 days
after the end of each Fiscal Year of the Trust.
41
46
(d) The Regular Trustees shall cause to be properly prepared
and filed on a timely basis with the appropriate taxing authority any United
States Federal income tax return or form as is required by the Code or the
Treasury Regulations, and any other tax returns or forms required to be filed by
or on behalf of the Trust with any state, local or other taxing authority.
SECTION 11.03 Banking
The Trust shall maintain one or more non-interest bearing bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the Property
Trustee shall be made directly to the Property Account and no other funds from
the Trust shall be deposited in the Property Account. The sole signatories for
such accounts shall be designated by the Regular Trustees; provided, however,
that the Property Trustee shall designate the sole signatories for the Property
Account.
SECTION 11.04 Withholding
The Trust and the Trustees shall comply with all withholding
requirements under applicable law. The Regular Trustees shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an available exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Regular Trustees to assist them in determining the extent of, and in
fulfilling, the Trust's withholding obligations. The Regular Trustee on behalf
of the Trust shall file required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
Regular Trustees shall so notify the Property Trustee and shall provide such
information as is reasonably requested by the Property Trustee to enable the
Property Trustee to effect such withholding, and 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 a Distribution to a Holder, the Trust may reduce subsequent
Distributions to such Holder (or its successor) by the amount of such
underwithholding. Except as otherwise provided pursuant to the terms of the
Securities as set forth in Exhibits B and C hereto, no additional amounts shall
be paid to a Holder to compensate the Holder for any required withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.01 Amendments
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and only
by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment or modification to this Declaration
shall be made, and any such purported amendment shall be void and ineffective:
(A) unless the Regular Trustees and the Property Trustee shall have first
received an Opinion of Counsel, who shall not be an employee of the Sponsor,
that such
42
47
amendment is permitted by, and conforms to, the terms of this Declaration and
that all conditions precedent, if any, in this Declaration to the execution and
delivery of such amendment have been satisfied; and (B) to the extent the result
of such amendment would be to: (x) cause the Trust to fail to continue to be
classified for purposes of United States Federal income taxation as a grantor
trust that is not a foreign trust; (y) reduce or otherwise adversely affect the
rights or powers of the Property Trustee in contravention of the Trust Indenture
Act; or (z) cause the Trust to be deemed to be an Investment Company required to
be registered under the Investment Company Act; (ii) at such time after the
Trust has issued any Securities which remain outstanding, any amendment which
would adversely affect the rights, privileges or preferences of any Holder of
Securities may be effected only with such additional requirements as may be set
forth in the terms of such Securities; (iii) Section 4.02, Section 9.01(c),
10.01(c) and this Section 12.01 shall not be amended without the consent of all
of the Holders of the Securities; (iv) no amendment which reduces the rate at
which Distributions on the Securities are payable shall be made without the
consent of all of the Holders of the Securities; (v) no amendment which
adversely affects the rights, powers and privileges of the Property Trustee or
the Delaware Trustee shall be made without the consent of the Property Trustee
or the Delaware Trustee, respectively; (vi) Section 4.02 shall not be amended
without the consent of the Sponsor; and (vii) the rights of the Holders of
Common Securities under Article V to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent of
each Holder of Common Securities.
(b) Notwithstanding Section 12.01(a), this Declaration may be
amended by a written instrument executed by a majority of the Regular Trustees
without the consent of the Holders of the Securities to (i) cure any ambiguity,
(ii) correct or supplement any provision in this Declaration that may be
defective or inconsistent with any other provision of this Declaration, (iii)
with the consent of the Sponsor, add to the covenants, restrictions or
obligations of the Sponsor; provided, however, that such consent shall not be
required if the effect of such amendment is to cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust,
(iv) conform to any changes in Rule 3a-7 (if the Trust is excluded from the
definition of an Investment Company solely by reason of Rule 3a-7) or any change
in interpretation or application of Rule 3a-7 (if the Trust is excluded from the
definition of an Investment Company solely by reason of Rule 3a-7) by the
Commission, (v) amend any other provisions with respect to matters or questions
arising under this Declaration which shall not be inconsistent with the other
provisions of this Declaration, (vi) modify, eliminate or add to any provisions
of this Declaration to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to ensure that
the Trust will not be required to register as an Investment Company under the
Investment Company Act, and (vii) pursuant to Section 5.01, evidence the
acceptance of the appointment of a successor Trustee or fill a vacancy created
by an increase in the number of Regular Trustees; provided that any such
amendment does not adversely affect in any material respect the rights,
preferences or privileges of the Holders.
SECTION 12.02 Meetings of the Holders of Securities; Action by Written
Consent
(a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which the Holders of such class of Securities are entitled to
43
48
act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange or automated quotation system on which the Preferred
Securities are then listed, traded or quoted. The Regular Trustees shall call a
meeting of the Holders of Preferred Securities or Common Securities, if directed
to do so by Holders of at least 10% of Outstanding Securities of such class.
Such direction shall be given by delivering to the Regular Trustees one or more
notices in writing stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders of Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Securities exercising the right
to call a meeting and only those specified Certificates shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provision shall apply to meetings of the Holders
of Securities:
(i) Notice of any such meeting shall be given by mail
to all the Holders of Securities having a right to vote
thereat not less than seven days nor more than sixty (60) days
prior to the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange or
automated quotation system on which the Preferred Securities
are then listed, traded or quoted, such vote, consent or
approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting and
without prior notice if a consent in writing setting forth the
action so taken is signed by Holders of Securities owning not
less than the minimum aggregate liquidation amount of
Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having
a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to
the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Holders of Securities for
the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees.
(ii) Each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder
of a Security is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the
Holder of the Security executing it. Except as otherwise
provided herein or in the terms of the Securities, all matters
relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware
corporation.
44
49
(iii) Each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust
Act, this Declaration or the rules of any stock exchange or
automated quotation system on which the Preferred Securities
are then listed, traded or quoted, the Regular Trustees, in
their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities,
waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 13.01 Representations and Warranties of the Property Trustee
The Trustee which acts as the initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as the Property Trustee that:
(a) The Property Trustee is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good standing under
the laws of the State of Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration.
(b) The execution, delivery and performance by the Property
Trustee of this Declaration have been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Declaration has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any banking authority which supervises or regulates the
Property Trustee is required for the execution, delivery or performance by the
Property Trustee of this Declaration, other than the filing of the Certificate
of Trust with the Delaware Secretary of State.
45
50
(e) The Property Trustee satisfies the qualifications set
forth in Section 5.01(c).
SECTION 13.02 Representations and Warranties of the Delaware Trustee
The Trustee which acts as the initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance
of its appointment as the Delaware Trustee, that:
(a) The Delaware Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration.
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration
with or notice to, any banking authority which supervises or regulates the
Delaware Trustee, if any, is required for the execution, delivery or performance
by the Delaware Trustee of this Declaration, other than the filing of the
Certificate of Trust with the Delaware Secretary of State.
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and is a Person that
satisfies for the Trust Section 3807(a) of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Notices
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the
Regular Trustees on behalf of the Trust may give notice of to the Holders of the
Securities):
46
51
ACS Trust [I] [II]
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention:
-----------------------
Telecopy:
------------------------
(b) if given to the Property Trustee, at the mailing address
of the Property Trustee set forth below (or such other address as the Property
Trustee may give notice of to the Holders of the Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
if given to the Delaware Trustee, at the mailing address of
the Delaware Trustee set forth below (or such other address as the Delaware
Trustee may give notice of to the Holders of the Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
(c) if given to the Holder of the Common Securities, at the
mailing address of the Holder of Common Securities set forth below (or such
other address as the Holder of the Common Securities may give notice of to the
Trust):
------------------------------------
------------------------------------
------------------------------------
Attention:
-------------------------
Telecopy:
--------------------------
(d) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given, when (i) received in person, (ii) telecopied with receipt confirmed,
or (iii) mailed by first class mail, postage prepaid, when received, except that
if a notice or other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
47
52
SECTION 14.02 Undertaking for Costs
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Declaration, or in any suit against the Property
Trustee for any action taken or omitted by it as Property Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the provisions of this
Section 14.02 shall not apply to any suit instituted by the Property Trustee, to
any suit instituted by any Holder of Preferred Securities, or group of Holders
of Preferred Securities, holding more than 10% of Outstanding Preferred
Securities, or to any suit instituted by any Holder of Preferred Securities for
the enforcement of the payment of the principal of, any premium or interest on
or any Additional Amounts with respect to the Debentures, on or after the
respective due dates expressed in such Debentures.
SECTION 14.03 Governing Law
This Declaration, the Securities and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
SECTION 14.04 Headings
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.05 Partial Enforceability
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to Persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.06 Counterparts
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
SECTION 14.07 Intention of the Parties
It is the intention of the parties hereto that the Trust not
be classified for United States Federal income tax purposes as an association
taxable as a corporation but that the Trust
48
53
be treated as a grantor trust for United States Federal income tax purposes. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.08 Successors and Assigns
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.09 No Recourse
The Trust's obligations hereunder are intended to be the
obligations of the Trust, and no recourse for the payment of Distributions, or
for any claim upon the Securities or otherwise in respect thereof, shall be had
against any Holder of Securities or any Affiliate of a Holder of Securities,
solely by reason of such Person's being a Holder of Securities or an Affiliate
of a Holder of Securities, it being understood that the Holder of Securities,
solely by reason of being a Holder of Securities, has limited liability (in
accordance with the provisions of the Business Trust Act) for the liabilities
and obligations of the Trust. Nothing contained in this Section 14.09 shall be
construed to limit the exercise or enforcement, in accordance with the terms of
this Declaration, the Preferred Securities Guarantee and the Indenture, of the
rights and remedies against the Trust or the Sponsor.
SECTION 14.10 Agent for Service of Process
The Sponsor hereby designates CT Corporation System, having an
address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent upon whom
process may be served in any action, suit or proceeding that may be instituted
in any State or Federal court sitting in the County of New York of the State of
New York pertaining to this Declaration or any matter arising out of or related
to this Declaration, and the Sponsor will accept the jurisdiction of such court
in such action, and waive, to the fullest extent permitted by applicable law,
any defense based upon lack of personal jurisdiction or venue or forum non
conveniens. A copy of any such process shall be sent or given to the Sponsor at
the address for notices specified in Section 14.01 hereof. The Sponsor shall
maintain the designation of such authorized agent until two years after the
dissolution of the Trust pursuant to Section 3.17 or Section 8.01.
SECTION 14.11 Payment Currency
To the fullest extent permitted by applicable law, the
obligation of the Sponsor in respect of any amount due hereunder shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in
Dollars that the party entitled to receive such payment may, in accordance with
normal banking procedures, purchase with the sum paid in such other currency
(after any premium and costs of exchange) in the city of receipt on the Business
Day immediately following the day on which such party receives such payment. If
the amount in Dollars that may be so purchased for any reason falls short of the
amount originally due, the Sponsor shall pay such additional amounts, in
Dollars, as may be necessary to compensate for the shortfall. Any obligation of
the Sponsor not discharged by such additional payment shall, to the fullest
extent permitted by applicable law, be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
49
54
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
AFFILIATED COMPUTER SERVICES, INC.
as Sponsor
By:
------------------------------------------
Name:
Title:
[NAME],
as initial Holder of Common Securities
By:
------------------------------------------
Name:
Title:
---------------------------------------------
XXXXXXX X. XXXXXXXXX, XX.,
as Regular Trustee
---------------------------------------------
XXXXXX XXXXXXX,
as Regular Trustee
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
------------------------------------------
Name:
Title:
50
55
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
------------------------------------------
Name:
Title:
51
56
EXHIBIT A
CERTIFICATE OF TRUST
OF
ACS TRUST [I] [II]
This Certificate of Trust of ACS Trust [I] [II] (the "Trust") is being
duly executed and filed on behalf of the Trust by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. C. Sec.
3801 et seq.) (the "Act").
1. Name. The name of the business trust being formed by this
Certificate is ACS Trust [I] [II].
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
A-1
57
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated
Trust
Agreement of ACS Trust [I] [II] dated as of ____________, ____ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. _________ (_______) Preferred
Securities of the Trust with an aggregate liquidation amount at any time
outstanding with respect to the assets of the Trust of _________________ Dollars
($___________) [(including up to ____________ (__________) Preferred Securities
of the Trust with an aggregate liquidation amount with respect to the assets of
the Trust of _______________ ($_________) issuable upon exercise of the
over-allotment option set forth in the Underwriting Agreement)], and each with a
liquidation amount with respect to the assets of the Trust of $______ per
Preferred Security, are hereby designated as "____% [[Convertible] Trust
Preferred Securities]." The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached hereto as Annex
I, with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange or automated quotation system on which the Preferred Securities
are then listed, traded or quoted. In connection with the issuance and sale of
the Preferred Securities and the Common Securities, the Trust will purchase as
trust assets Debentures of ACS having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and the Common
Securities so issued and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and the Common Securities and
having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. Distributions and Additional Amounts. (a) Distributions
payable on each Preferred Security will be fixed at a rate per annum of ____%
(the "Coupon Rate") of the stated liquidation amount of $______ per Preferred
Security, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions that are not paid when such
distributions are payable (or would be payable but for the deferral of such
payment pursuant to Section 2.1(b) below or a default by ACS in the payment of
interest on the Debentures) will accumulate additional distributions thereon at
the Coupon Rate per annum (to the extent permitted by applicable law),
compounded [quarterly] [semi-annually]. The term "Distributions" as used herein
means such periodic cash distributions and any such additional distributions
payable unless otherwise stated. A Distribution will be made by the Property
Trustee only to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Trust has funds on
hand legally available therefor. The amount of Distributions payable for any
period will be computed for any full [quarterly] [semi-annual] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [quarterly] [semi-annual] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per [90-day quarter] [180-day semi-annual
period].
B-1
58
(b) Distributions on the Preferred Securities will accumulate
from ________ ___, _____ and will be payable [quarterly] [semi-annually] in
arrears, on [________ ___, ________ ___,] ________ ___ and ________ ___ of each
year, commencing on ________ ___, ____, except as otherwise described below, but
only if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, ACS has
the right under the Indenture for the Debentures to defer payments of interest
on the Debentures by extending the interest payment period of the Debentures at
any time and from time to time for a period not exceeding [20] [10] consecutive
[quarterly] [semi-annual] interest periods (each, an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred. Despite
such deferral, Distributions will continue to accumulate on the Preferred
Securities with additional distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded [quarterly]
[semi-annually] during any such Extension Period. No Extension Period shall
extend beyond the stated maturity of the Debentures. Prior to the termination of
any such Extension Period, ACS may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed [20] [10] consecutive [quarterly]
[semi-annual] interest periods or extend beyond the stated maturity of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, ACS may commence a new Extension Period, subject to the above
requirements. On the Distribution payment date at the end of an Extension
Period, payments of accumulated Distributions (including any Additional Amounts)
will be payable to Holders of Preferred Securities as they appear on the books
and records of the Trust (regardless of who the Holders may have been on other
dates during the Extension Period) on the record date for such Distribution
payment date.
(c) Distributions and Additional Amounts on the Preferred
Securities will be payable promptly by the Property Trustee (or other Paying
Agent) upon receipt of immediately available funds to the Holders thereof as
they appear on the books and records of the Trust on the relevant record dates.
While the Preferred Securities remain in book-entry only form, the relevant
record dates shall be the Business Day next preceding the relevant Distribution
payment date, and if the Preferred Securities are no longer in book-entry only
form, the relevant record dates will be the close of business on the [________
___, ________ ___,] ________ ___ and ________ ___ next preceding the relevant
Distribution payment date, which record and payment dates correspond to the
record and interest payment dates on the Debentures. Distributions and
Additional Amounts payable on any Preferred Securities that are not punctually
paid on any Distribution payment date as a result of ACS's having failed to make
the corresponding payment on the Debentures will forthwith cease to be payable
to the Person in whose name such Preferred Security is registered on the
relevant record date, and such defaulted payment will instead be payable to the
Person in whose name such Preferred Security is registered on the special record
date established by the Regular Trustees, which record date shall correspond to
the special record date or other specified date determined in accordance with
the Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless ACS has elected to make a full or partial payment of accrued interest on
the Debentures on such Distribution payment date. Subject to any applicable laws
and regulations and the provisions of the Declaration, each payment in respect
of the Preferred
B-2
59
Securities will be made as described in Section [9] hereof. If any date on which
Distributions and Additional Amounts are payable on the Preferred Securities is
not a Business Day, then payment of the Distribution and Additional Amounts
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date such payment was
originally payable. Notwithstanding anything herein to the contrary, the record
dates and payment dates for Distributions and Additional Amounts shall be the
same as the record dates and payment dates for the Debentures.
(d) All Distributions and Additional Amounts paid with respect
to the Preferred Securities and the Common Securities will be paid Pro Rata (as
defined below) to the Holders thereof entitled thereto. If an Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities with respect to such payments.
(e) [In the event of an election by the Holder to convert its
Preferred Securities through the Conversion Agent into shares of Common Stock
pursuant to the terms of the Preferred Securities as set forth herein, no
payment, allowance or adjustment shall be made with respect to accumulated and
unpaid Distributions on or additional amounts with respect to such Preferred
Securities, or be required to be made; provided, however, that if a Preferred
Security is surrendered for conversion after the close of business on any
regular record date for payment of a Distribution and additional amounts and
before the opening of business on the corresponding Distribution payment date,
then, notwithstanding such conversion, the Distribution and additional amounts
payable on such Distribution payment date will be paid in cash to the Person in
whose name the Preferred Security is registered at the close of business on such
record date, and (other than a Preferred Security or a portion of a Preferred
Security called for redemption on a redemption date occurring after such record
date and on or prior to such Distribution payment date) when so surrendered for
conversion, the Preferred Security must be accompanied by payment of an amount
equal to the Distribution and additional amounts payable on such Distribution
payment date.
(f)] In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and the Common Securities.
3. Liquidation Distribution Upon Dissolution. (a) In the event
of any voluntary or involuntary dissolution of the Trust other than as
contemplated by Section 8.01(a) or (f) of the Declaration, the Holders of the
Preferred Securities and the Common Securities will be entitled to receive Pro
Rata solely out of the assets of the Trust legally available for distribution to
Holders of Preferred Securities and Common Securities after satisfaction of
liabilities to the creditors of the Trust, an amount equal to the aggregate of
the stated liquidation amount of $______ per Preferred Security and Common
Security plus accumulated and unpaid Distributions thereon and any Additional
Amounts with respect thereto to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution and
after satisfaction of liabilities to the creditors of the Trust, Debentures, in
an aggregate principal amount equal to the aggregate stated liquidation amount
of such Preferred Securities
B-3
60
and the Common Securities and bearing accrued and unpaid interest and Additional
Amounts in an amount equal to the accumulated and unpaid Distributions on and
any Additional Amounts with respect to such Preferred Securities and the Common
Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and the Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets on hand
legally available to pay in full the aggregate Liquidation Distribution, then
the amounts payable directly by the Trust on the Preferred Securities and the
Common Securities shall be paid, subject to the next paragraph, on a Pro Rata
basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right
to direct the Property Trustee in writing at any time to dissolve the Trust and
to distribute Debentures to Holders in exchange for Securities (which direction
is optional and wholly within the discretion of the Holder of the Common
Securities). Upon the receipt of any such written direction, the Property
Trustee shall promptly (i) distribute Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities and the Common Securities held by each Holder, which Debentures bear
accrued and unpaid interest and Additional Amounts in an amount equal to the
accumulated and unpaid Distributions on and any Additional Amounts with respect
to the Preferred Securities and the Common Securities of such Holder, in
exchange for the Preferred Securities and Common Securities of such Holder and
(ii) dissolve the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be deemed
to be outstanding and may be canceled by the Regular Trustees; (ii) the Clearing
Agency, or its nominee, as the Holder of the Preferred Securities, will receive
a registered global certificate or certificates representing the Debentures to
be delivered upon such distribution; and (iii) Certificates representing
Preferred Securities not held by the Clearing Agency or its nominee will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest and Additional Amounts equal to accumulated and unpaid
Distributions on and any Additional Amounts with respect to, such Preferred
Securities until such Certificates are presented to ACS or its agent for
cancellation and Debentures are issued in lieu thereof. Debentures distributed
to holders of Certificates representing Preferred Securities not held by the
Clearing Agency or its nominee shall not be issued in the form of a global
certificate or certificates representing such Debentures or any other form
intended to facilitate book-entry trading in beneficial interests in such
Debentures.
[(d) If Debentures are distributed to Holders of the Preferred
Securities, ACS, pursuant to the terms of the Indenture, will use its reasonable
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange or automated quotation
B-4
61
system as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.]
4. Redemption of Debentures. The Preferred Securities may be
redeemed only if Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and the Common
Securities are repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity, upon redemption at any time or from time to time
[on or after _________, ____], the proceeds of such repayment will be
promptly applied to redeem Pro Rata Preferred Securities and Common
Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed,
upon not less than 30 nor more than 60 days' notice, at a redemption
price [of $______ per Preferred Security and Common Security plus an
amount equal to accumulated and unpaid Distributions thereon and any
Additional Amounts with respect thereto to, but excluding, the date of
redemption, payable in cash (the "Redemption Price").] [equal to (i) in
the case of the optional redemption of the Debentures upon the
occurrence and continuation of a Special Event (as defined below), the
Special Event Redemption Price (as defined below) or (ii) in the case
of the optional redemption of the Debentures other than as contemplated
in clause (i) above, the Optional Redemption Price (as defined below).
The Special Event Redemption Price and the Optional Redemption Price
are referred to collectively as the "Redemption Price."] The date of
any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or
redemption date of the Debentures.
["Special Event Redemption Price" shall be equal to the
greater of (i) the liquidation amount of the Preferred Securities to be
redeemed and (ii) the Make-Whole Amount, in each case plus an amount
equal to accumulated and unpaid Distributions thereon and any
Additional Amounts with respect thereto to, but excluding, the date of
redemption.
"Optional Redemption Price" shall be equal to the greater of
(i) the liquidation amount of the Preferred Securities to be redeemed
and (ii) the Make-Whole Amount, in each case plus an amount equal to
accumulated and unpaid Distributions thereon and any Additional Amounts
with respect thereto to, but excluding, the date of redemption.
"Make-Whole Amount" shall be equal to, as determined by the
Quotation Agent, the sum of the present values, calculated as of the
redemption date, of (i) each interest payment that would have been
payable on the Debentures or portions thereof being redeemed, if such
Debentures or portions thereof were not redeemed, on each scheduled
interest payment date occurring after the redemption date (excluding
any accrued interest for the period prior to the redemption date) and
(ii) the principal amount of such Debentures or portions thereof that
would have been payable, if such Debentures or portions thereof were
not redeemed, at the scheduled maturity of such Debentures or portions
thereof being redeemed (the "Remaining Life"), in each case discounted
to the redemption date on a semiannual basis (assuming a 360-day year
consisting of 30-day
B-5
62
months) at the Adjusted Treasury Rate plus ___ basis points for the
purpose of calculating the Optional Redemption Price and ___ basis
points for the purpose of calculating the Special Event Redemption
Price.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to (i) the yield, under the heading
which represents the average for the immediately prior week, appearing
in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the
Federal Reserve Board and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity date
corresponding to the Remaining Life (if no maturity date is within
three months before or after the Remaining Life, yields for the two
published maturity dates most closely corresponding to the Remaining
Life shall be interpolated and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum
equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case
calculated on the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity date
comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the Remaining Life. If no United States Treasury security has a
maturity date which is within a period from three months before to
three months after the Remaining Life, the two most closely
corresponding United States Treasury securities shall be used as the
Comparable Treasury Issue, and the Adjusted Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Quotation Agent" means ________________ and its successors;
provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), ACS shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture
Trustee after consultation with ACS.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Debenture Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
B-6
63
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debenture Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Debenture Trustee by
such Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and
Common Securities are to be so redeemed, the Preferred Securities will
be redeemed as described in Section 4(e)(ii) below, and the Common
Securities will be redeemed Pro Rata with the Preferred Securities,
except that if an Event of Default has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price. If a partial
redemption would result in the delisting of the Preferred Securities by
any national securities exchange or other organization on which the
Preferred Securities are then listed or traded, ACS pursuant to the
Indenture will redeem Debentures only in whole and, as a result, the
Trust may redeem the Preferred Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall
occur and be continuing, ACS shall have the right at any time [prior to
________ ___, ____], upon not less than 30 nor more than 60 days'
notice, to redeem the Debentures in whole [or][but not] in part for
cash at the [Special Event] Redemption Price within 90 days following
the occurrence of such Special Event, and promptly following such
redemption, Preferred Securities and Common Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed will be redeemed by the Trust at the
[Special Event] Redemption Price on a Pro Rata basis. The Common
Securities will be redeemed Pro Rata with the Preferred Securities,
except that if an Event of Default has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities
with respect to payment of the [Special Event] Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel, who shall not be an employee
of the Sponsor and who shall be 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 rules or
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws,
rules or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any
legislation or the publication of any judicial decision or regulatory
determination), (c) any interpretation or pronouncement by any
legislative body, court, governmental agency or regulatory authority
that provides for a position with respect to such laws, rules or
regulations that differs from its previous position or a theretofore
commonly accepted position or (d) any action taken by any governmental
agency or regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each
case on or after ________ ___, ____, there is more than an
insubstantial risk that (i) the
B-7
64
Trust is, or will be within 90 days of the date thereof, subject to
United States Federal income tax with respect to income accrued or
received on the Debentures, (ii) the Trust is, or will be within 90
days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges or (iii) interest payable
by ACS to the Trust on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by ACS for United States Federal
income tax purposes.
"Investment Company Event" means that the Sponsor and the
Regular Trustees shall have received an Opinion of Counsel, who shall
not be an employee of the Sponsor and who shall be experienced in
practice under the Investment Company Act, that, as a result of the
occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
Investment Company Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an Investment Company that is
required to be registered under the Investment Company Act, which
Change in Investment Company Act Law becomes effective on or after
________ ___, ____.
(d) The Trust may not redeem fewer than all the outstanding
Preferred Securities unless all accumulated and unpaid Distributions
and Additional Amounts have been paid on all Preferred Securities for
all [quarterly] [semi-annual] Distribution periods terminating on or
prior to the date of redemption.
(e) (i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and the Common
Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of
Preferred Securities and Common Securities to be redeemed or exchanged
not less than 30 nor more than 60 days prior to the date fixed for
redemption or exchange thereof. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities
and Common Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Preferred Securities and Common Securities
at the address of each such Holder appearing in the books and records
of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be redeemed Pro Rata from each Holder of Preferred
Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by DTC (or
successor Clearing Agency) or any other nominee, the Preferred
Securities will be redeemed from, and the distribution of the proceeds
of such redemption will be made to, DTC (or successor Clearing Agency)
or other nominee.
B-8
65
(iii) Subject to Section [9] hereof, if the Trust gives a
Redemption/Distribution Notice in respect of a redemption of Preferred
Securities as provided in this Section 4, then (A) while the Preferred
Securities are in book-entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date,
provided that ACS has paid the Property Trustee, in immediately
available funds, a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee
will deposit irrevocably with DTC (or successor Clearing Agency) funds
sufficient to pay the applicable Redemption Price with respect to the
Preferred Securities and will give DTC (or successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities and (B) if the Preferred
Securities are issued in definitive form, with respect to the Preferred
Securities and provided that ACS has paid the Property Trustee, in
immediately available funds, a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the Property
Trustee will pay the relevant Redemption Price to the Holders of such
Preferred Securities by check mailed to the address of the relevant
Holder appearing on the books and records of the Trust on the
redemption date or by wire transfer of immediately available funds to
an account designated by such Holder. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, if
applicable, then immediately prior to the close of business on the
redemption date, Distributions will cease to accumulate on the
Preferred Securities called for redemption, such Preferred Securities
will no longer be deemed to be outstanding and all rights of Holders of
such Preferred Securities so called for redemption will cease, except
the right of the Holders of such Preferred Securities to receive the
Redemption Price, but without interest on such Redemption Price.
Neither the Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Preferred Securities which
have been so called for redemption. If any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of Preferred Securities is
improperly withheld or refused and not paid either by the Property
Trustee or by ACS pursuant to the Preferred Securities Guarantee,
Distributions on such Preferred Securities will continue to accumulate,
from the original redemption date to the date of payment, in which case
the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to DTC or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificates
have been issued or, if Definitive Preferred Security Certificates have
been issued, to the Holders of the Preferred Securities.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws), ACS or any
of its Affiliates may at any time and
B-9
66
from time to time purchase outstanding Preferred Securities by tender,
in the open market or by private agreement.
[5. CONVERSION RIGHTS. The Holders of Preferred Securities
shall have the right at any time prior to the close of business on ___________,
____ or, in the case of Preferred Securities called for redemption, prior to the
close of business on the Business Day immediately prior to the redemption date,
at their option, to cause the Conversion Agent to convert Preferred Securities,
on behalf of the converting Holders, into shares of Common Stock in the manner
described herein on and subject to the following terms and conditions:
(a) The Preferred Securities will be convertible at the office
of the Conversion Agent maintained for such purpose in the Borough of
Manhattan, The City of New York, into fully paid and nonassessable
shares of Common Stock pursuant to the Holder's direction to the
Conversion Agent to exchange such Preferred Securities for a portion of
the Debentures theretofore held by the Trust on the basis of one
Preferred Security per $______ principal amount of Debentures, and
immediately convert such amount of Debentures into fully paid and
nonassessable shares of Common Stock at an initial rate of __ shares of
Common Stock per $_______ principal amount of Debentures (which is
equivalent to a conversion price of $___ per share of Common Stock,
subject to certain adjustments set forth in Sections ___ and ___ of the
Supplemental Indenture (as so adjusted, the "Conversion Price")).
(b) In order to convert Preferred Securities into Common
Stock, the Holder shall submit to the Conversion Agent at the office
referred to above an irrevocable request to convert Preferred
Securities on behalf of such Holder (the "Conversion Request"),
together, if the Preferred Securities are in certificated form, with
such Preferred Security Certificates. The Conversion Request shall (i)
set forth the number of Preferred Securities to be converted and the
name or names, if other than the Holder, in which the shares of Common
Stock should be issued and (ii) direct the Conversion Agent (a) to
exchange such Preferred Securities for a portion of the Debentures held
by the Trust (at the rate of exchange specified in the preceding
paragraph) and (b) to immediately convert such Debentures on behalf of
such Holder into shares of Common Stock, subject to certain adjustments
set forth in the Supplemental Indenture (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall
notify the Trust of the Holder's election to exchange Preferred
Securities for a portion of the Debentures held by the Trust and the
Trust shall, upon receipt of such notice, deliver to the Conversion
Agent the appropriate principal amount of Debentures for exchange in
accordance with this Section. The Conversion Agent shall thereupon
notify the Sponsor of the Holder's election to convert such Debentures
into shares of Common Stock. If a Preferred Security is surrendered for
conversion after the close of business on any regular record date for
payment of a Distribution and before the opening of business on the
corresponding Distribution payment date, then, notwithstanding such
conversion, the Distribution payable on such Distribution payment date
will be paid in cash to the Person in whose name the Preferred Security
is registered at the close of business on such record date, and (other
than a Preferred Security or a portion of a Preferred Security called
for redemption on a redemption date occurring after such record date
and on or prior to such Distribution payment date) when so surrendered
for conversion, the Preferred Security
B-10
67
must be accompanied by payment of an amount equal to the Distribution
payable on such Distribution payment date. Except as provided above,
neither the Trust nor the Sponsor will make, or be required to make,
any payment, allowance or adjustment upon any conversion on account of
any accumulated and unpaid Distributions accumulated on the Preferred
Securities surrendered for conversion, or on account of any accumulated
and unpaid dividends on the shares of Common Stock issued upon such
conversion, and the delivery of shares of Common Stock upon conversion
of the Preferred Securities shall be deemed to constitute full payment
for all accumulated and unpaid Distributions on the Preferred
Securities. Preferred Securities shall be deemed to have been converted
immediately prior to the close of business on the day on which a Notice
of Conversion relating to such Preferred Securities is received by the
Trust in accordance with the foregoing provision (the "Conversion
Date"). The Person or Persons entitled to receive shares of Common
Stock issuable upon conversion of the Debentures shall be treated for
all purposes as the record holder or holders of such shares of Common
Stock at such time. As promptly as practicable on or after the
Conversion Date, the Sponsor shall issue the number of full shares of
Common Stock issuable upon such conversion to, and shall deliver at the
office of the Conversion Agent the cash payment, if any, in lieu of any
fraction of any Share for the account of, the Person or Persons
entitled to receive the same, unless otherwise directed by the Holder
in the Notice of Conversion. The Conversion Agent shall distribute such
cash payment, if any, to such Person or Persons.
(c) Each Holder of a Preferred Security by his acceptance
thereof appoints __________________, as the "Conversion Agent" for the
purpose of effecting the conversion of Preferred Securities in
accordance with this Section. In effecting the conversion and
transactions described in this Section, the Conversion Agent shall be
acting as agent of the Holders of Preferred Securities directing it to
effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange Preferred Securities from time to time for
Debentures held by the Trust in connection with the conversion of such
Preferred Securities in accordance with this Section and (ii) to
convert all or a portion of the Debentures into shares of Common Stock
and thereupon to deliver such shares of Common Stock in accordance with
the provisions of this Section and to deliver to the Trust a new
Debenture or Debentures for any resulting unconverted principal amount.
(d) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest
will be paid by the Sponsor in cash (based upon the Closing Price (as
defined in the Indenture) of shares of Common Stock on the date such
Preferred Securities are surrendered for conversion to the Trust) to
the Conversion Agent, which in turn will make such payment to the
Holder or Holders of Preferred Securities so converted, or, if such day
is not a Trading Day (as defined in the Indenture), on the next Trading
Day.
(e) The Sponsor shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance
upon the conversion of the Debentures, free from any preemptive or
other similar rights, such number of shares of Common Stock as shall
from time to time be issuable upon the conversion of all the Debentures
then outstanding. Notwithstanding the foregoing, the Sponsor shall be
B-11
68
entitled to deliver upon conversion of Debentures, shares of Common
Stock reacquired and held in the treasury of the Sponsor (in lieu of
the issuance of authorized and unissued shares of Common Stock), so
long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Common Stock
issued upon conversion of the Debentures shall be duly authorized,
validly issued and fully paid and nonassessable. The Trust shall
deliver the shares of Common Stock received upon conversion of the
Debentures to the converting Holder of Preferred Securities free and
clear of all liens, charges, security interests and encumbrances,
except for United States withholding taxes. Each of the Sponsor and the
Trust shall prepare and shall use its best efforts to obtain and keep
in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all
applicable requirements as to registration or qualification of shares
of Common Stock (and all requirements to list shares of Common Stock
issuable upon conversion of Debentures that are at the time
applicable), in order to enable the Sponsor to lawfully issue shares of
Common Stock to the Trust upon conversion of the Debentures and the
Trust to lawfully deliver shares of Common Stock to each Holder of
Preferred Securities upon conversion of the Preferred Securities.
(f) The Sponsor will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Common Stock on
conversion of Debentures and the delivery of the shares of Common Stock
by the Trust upon conversion of the Preferred Securities. The Sponsor
shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the Preferred
Securities so converted were registered, and no such issue or delivery
shall be made unless and until the Person requesting such issue has
paid to the Trust the amount of any such tax, or has established to the
satisfaction of the Trust that such tax has been paid.
(g) Nothing in the preceding paragraph (f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Preferred Securities or set forth in this Exhibit B to the Declaration
or to the Declaration itself or otherwise require the Property Trustee
or the Trust to pay any amounts on account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under paragraph [6](b) below
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for,
or the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration, other than as described in
Section 12.01(b) of the Declaration, or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.01
of the Declaration, then the Holders of outstanding Securities will be entitled
to vote on such amendment or proposal as a single class and such amendment or
proposal shall not be effective except with the approval of the Holders of
Securities of at least a Majority of Outstanding Securities, voting together as
a single class; provided, however, that (A) if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred
Securities or
B-12
69
the Common Securities, then only the affected class of Securities will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of at least a Majority of
Outstanding Securities of such class and (B) amendments to the Declaration shall
be subject to such further requirements as are set forth in Sections 12.01 and
12.02 of the Declaration.
In the event the consent of the Property Trustee, as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority of Outstanding Securities voting together
as a single class; provided, however, that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified for United States Federal income
tax purposes as other than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee of the Indenture (the
"Debenture Trustee"), or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 6.06 of the Indenture or (iii) exercise any right
to rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures, without, in each case, obtaining the prior approval
of the Holders of a Majority of Outstanding Preferred Securities and Common
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities except by
subsequent vote of such Holders. The Property Trustee shall notify each Holder
of Preferred Securities of any notice of default with respect to the Debentures.
If an Event of Default has occurred and is continuing, then
the Holders of a Majority of Outstanding Preferred Securities will have the
right, subject to Section 3.12(c)(iv) of the Declaration, to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power conferred upon
the Property Trustee under the Declaration, including the right to direct the
Property Trustee to exercise the remedies available to it as a holder of the
Debentures. If the Property Trustee fails to enforce its rights under the
Debentures, a Holder of Preferred Securities may, to the fullest extent
permitted by law, after a period of 30 days has elapsed since such Holder's
written request to the Property Trustee to enforce such rights, institute a
legal proceeding directly against the Sponsor to enforce the Property Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Property Trustee or any other Person; provided that,
B-13
70
if an Event of Default has occurred and is continuing and such event is
attributed to the failure of the Sponsor to pay principal of, any premium or
interest on or any Additional Amounts with respect to the Debentures on the date
such amounts are otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of such amounts on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder (a "Holder Direct Action") on or
after the respective due date specified in the Debentures. In connection with
such Holder Direct Action, the Sponsor will be subrogated to the rights of such
Holder of Preferred Securities to the extent of any payment made by the Sponsor
to such Holders of Preferred Securities in such Holder Direct Action. Except as
provided in the preceding sentences, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to the Holders of
the Debentures.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the Declaration
in respect of the Securities.
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies. Any action that may be taken at a meeting of the Holders of Securities
may be taken without a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by Holders of Securities owning not
less than the minimum aggregate liquidation amount of Securities that would be
necessary to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration or Section 3 of
this Exhibit B.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities at such time that are owned by ACS or by any
Affiliate of ACS shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
Holders of the Preferred Securities have no rights to increase
or decrease the number of Trustees or to appoint, remove or replace a Trustee,
which voting rights are vested exclusively in the Holders of the Common
Securities.
7. PRO RATA TREATMENT. A reference in these terms of the
Preferred Securities to any payment, Distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
B-14
71
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be paid
first to each Holder of the Preferred Securities pro rata according to the
aggregate liquidation amount of Preferred Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. RANKING. The Preferred Securities rank pari passu and
payment thereon will be made Pro Rata with the Common Securities, except that
when an Event of Default occurs and is continuing, the rights of Holders of
Preferred Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of
Distributions and any Additional Amounts and payments on redemption of the
Preferred Securities will be payable, the transfer of the Preferred Securities
will be registrable, and Preferred Securities will be exchangeable for Preferred
Securities of other denominations of a like aggregate liquidation amount, at the
corporate trust office of the Property Trustee (or its Affiliate) in The City of
New York; provided that payment of Distributions and any Additional Amounts may
be made at the option of the Regular Trustees on behalf of the Trust by check
mailed to the address of the Persons entitled thereto or by wire transfer of
funds to an account designated by such Holder and that the payment on redemption
of any Preferred Security will be made only upon surrender of such Preferred
Security to the Property Trustee.
10. ACCEPTANCE OF INDENTURE AND PREFERRED SECURITIES
GUARANTEE. Each Holder of Preferred Securities, by the acceptance thereof,
agrees to the provisions of (i) the Preferred Securities Guarantee, including
the subordination provisions therein, and (ii) the Indenture and the Debentures,
including the subordination provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities
shall have no preemptive or similar rights to subscribe to any additional
Preferred Securities or Common Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Preferred Securities without charge on written request to the
Trust at its principal place of business.
B-15
72
Annex I
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company ("DTC") or a nominee of DTC. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person other than DTC or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
DTC (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to ACS Trust [I] [II] or its agent for
registration of transfer, exchange or payment, and any Preferred Security issued
is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of DTC and any payment hereon is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number Number of Preferred Securities:
------------
-----------
Aggregate Liquidation Amount: $
-----------
CUSIP NO.
-----------
Certificate Evidencing Preferred Securities
of
ACS Trust [I] [II]
% [[Convertible] Trust Preferred Securities]
----
(liquidation amount $ per Preferred Security)
------
ACS Trust [I] [II], a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _____ (______) preferred securities of
the Trust representing preferred undivided beneficial interests in the assets of
the Trust and designated the ____% [[Convertible] Trust Preferred Securities]
(liquidation amount $______ per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this Certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement
of the Trust dated as of ___________, ____, as the same may be amended from time
to time (the "Declaration") including the designation of the terms of Preferred
Securities as set forth in Exhibit B thereto. The Preferred Securities and the
Common Securities issued by the Trust pursuant to the
B-16
73
Declaration represent undivided beneficial interests in the assets of the Trust,
including the Debentures (as defined in the Declaration) issued by Affiliated
Computer Services, Inc., a Delaware corporation ("ACS"), to the Trust pursuant
to the Indenture referred to in the Declaration. The Holder is entitled to the
benefits of the Guarantee Agreement of ACS dated as of __________, ____ (the
"Guarantee") to the extent provided therein. The Trust will furnish a copy of
the Declaration, the Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture, and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is (a) subordinate and junior in right of payment to all other
[senior] liabilities of ACS and any guarantees of ACS relating to such
liabilities [, except in each case those made pari passu or subordinate by their
terms]; (b) senior to all capital stock now or hereafter issued by ACS; and (c)
pari passu with respect to obligations under other securities (other than
capital stock) ACS may issue from time to time and other guarantee agreements
which it may enter into from time to time to the extent that (x) such agreements
shall provide for comparable guarantees by ACS of payment on preferred
securities issued by other trusts, partnerships or other entities affiliated
with ACS that are financing vehicles of ACS and (y) the debentures or other
evidences of indebtedness of ACS relating to such preferred securities are
junior subordinated, unsecured indebtedness of ACS.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, Trustees of the Trust have executed this
Certificate.
ACS TRUST [I] [II]
By: ,as Regular Trustee
------------------------
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
---------------------------------,
as Transfer Agent and Registrar
By:
-------------------------------
Authorized Signatory
B-17
74
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed
at a rate per annum of ____% (the "Coupon Rate") of the stated liquidation
amount of $______ per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions that
are not paid when such distributions are payable (or would be payable but for
the deferral of such payment pursuant to the Declaration or a default by ACS in
the payment of interest on the Debentures) will accumulate additional
distributions thereon at the Coupon Rate per annum (to the extent permitted by
applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed. Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
Distributions on the Preferred Securities will accumulate from
________ ___, _____ and will be payable [quarterly] [semi-annually] in arrears,
on [________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, ACS has
the right under the Indenture for the Debentures to defer payments of interest
on the Debentures by extending the interest payment period of the Debentures at
any time and from time to time for a period not exceeding [20] [10] consecutive
[quarterly] [semi-annual] interest periods (each, an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred. Despite
such deferral, Distributions will continue to accumulate on the Preferred
Securities with additional distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded [quarterly]
[semi-annually] during any such Extension Period. No Extension Period shall
extend beyond the stated maturity of the Debentures. Prior to the termination of
any such Extension Period, ACS may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed [20] [10] consecutive [quarterly]
[semi-annual] interest periods or extend beyond the stated maturity of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, ACS may commence a new Extension Period, subject to the above
requirements. On the Distribution payment date at the end of an Extension
Period, payments of accumulated Distributions (including any Additional Amounts)
will be payable to Holders of Preferred Securities as they appear on the books
and records of the Trust (regardless of who the Holders may have been on other
dates during the Extension Period) on the record date for such Distribution
payment date.
The Preferred Securities shall be redeemable as provided in
the Declaration.
B-18
75
[The Preferred Securities shall be convertible into shares of
Common Stock (as defined in the Declaration), through (i) the exchange of
Preferred Securities for a portion of the Debentures and (ii) the immediate
conversion of such Debentures into shares of Common Stock, in the manner and
according to the terms set forth in the Declaration.]
B-19
76
[CONVERSION REQUEST
To: __________________,
as Conversion Agent for ACS Trust [I] [II]
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into shares of Common Stock (as that term is defined
in the Amended and Restated
Trust Agreement, dated as of ______, ____ (as
amended from time to time, the "Declaration"), by Xxxxxxx X. Xxxxxxxxx, Xx. and
Xxxxxx Xxxxxxx as Regular Trustees, Wilmington Trust Company, as the Delaware
Trustee, Wilmington Trust Company, as the Property Trustee, Affiliated Computer
Services, Inc., as Sponsor, _____________, as initial Holder of Common
Securities, and by the Holders, from time to time, of undivided beneficial
interests in the assets of the Trust to be issued pursuant to the Declaration)
in accordance with and subject to the terms and conditions of the Declaration.
Pursuant to the aforementioned exercise of the option to convert these Preferred
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in the Declaration) to (i) exchange such Preferred Securities for a
portion of the Debentures (as that term is defined in the Declaration) held by
ACS Trust [I] [II] (at the rate of exchange specified in the terms of the
Preferred Securities set forth as Exhibit B to the Declaration) and (ii)
immediately convert such Debentures on behalf of the undersigned into Common
Stock (at the conversion rate specified in the terms of the Preferred Securities
set forth as Exhibit B to the Declaration, subject to certain adjustments set
forth in the Supplemental Indenture (as that term is defined in the
Declaration)).
The undersigned does also hereby direct the Conversion Agent
that the shares of Common Stock issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If shares of Common Stock are to be issued in the name
of a Person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto.
B-20
77
Date: ,
--------------- -----
in whole in part
--- ---
Number of Preferred Securities to be converted:
-----------------------
If a name or names other than the undersigned,
please indicate in the spaces below the name or
names in which the shares of Common Stock are
to be issued, along with the address or
addresses of such Person or Persons:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Type Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
----------------------------------
----------------------------------
----------------------------------
Signature Guarantee:*
---------
---------
*(Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
B-21
78
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
================================================================================
----------------------------------------------------------------
----------------------------------------------------------------
{Insert assignee's social security or tax identification number}
----------------------------------------------------------------
----------------------------------------------------------------
{Insert address and zip code of assignee}
and irrevocably appoints
----------------------------------------------------------------
----------------------------------------------------------------
____________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
-------------------------------
Signature:
--------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
B-22
79
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated
Trust
Agreement of ACS Trust [I] [II] dated as of ____________, ____ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. _________ (_______) Common
Securities of the Trust with an aggregate liquidation amount at any time
outstanding with respect to the assets of the Trust of _________________ Dollars
($___________) [(including up to ____________ (__________) Common Securities of
the Trust with an aggregate liquidation amount with respect to the assets of the
Trust of _______________ ($_________) issuable in connection with the exercise
of the over-allotment option set forth in the Underwriting Agreement)], and each
with a liquidation amount with respect to the assets of the Trust of $______ per
Common Security, are hereby designated as "____% [[Convertible] Trust Common
Securities]." The Common Security Certificates evidencing the Common Securities
shall be substantially in the form attached hereto as Annex I, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as trust
assets Debentures of ACS having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and the Common
Securities so issued and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and the Common Securities and
having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. DISTRIBUTIONS AND ADDITIONAL AMOUNTS. (a) Distributions
payable on each Common Security will be fixed at a rate per annum of ____% (the
"Coupon Rate") of the stated liquidation amount of $______ per Common Security,
such rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions that are not paid when such distributions are
payable (or would be payable but for the deferral of such payment pursuant to
Section 2.1(b) below or a default by ACS in the payment of interest on the
Debentures) will accumulate additional distributions thereon at the Coupon Rate
per annum (to the extent permitted by applicable law), compounded [quarterly]
[semi-annually]. The term "Distributions" as used herein means such periodic
cash distributions and any such additional distributions payable unless
otherwise stated. A Distribution will be made by the Property Trustee only to
the extent that interest payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Trust has funds on hand legally
available therefor. The amount of Distributions payable for any period will be
computed for any full [quarterly] [semi-annual] Distribution period on the basis
of a 360-day year of twelve 30-day months, and for any period shorter than a
full [quarterly] [semi-annual] Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per [90-day quarter] [180-day semi-annual period].
C-1
80
(b) Distributions on the Common Securities will accumulate
from ________ ___, _____ and will be payable [quarterly] [semi-annually] in
arrears, on [________ ___, ________ ___,] ________ ___ and ________ ___ of each
year, commencing on ________ ___, ____, except as otherwise described below, but
only if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, ACS has
the right under the Indenture for the Debentures to defer payments of interest
on the Debentures by extending the interest payment period of the Debentures at
any time and from time to time for a period not exceeding [20] [10] consecutive
[quarterly] [semi-annual] interest periods (each, an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred. Despite
such deferral, Distributions will continue to accumulate on the Common
Securities with additional distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded [quarterly]
[semi-annually] during any such Extension Period. No Extension Period shall
extend beyond the stated maturity of the Debentures. Prior to the termination of
any such Extension Period, ACS may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed [20] [10] consecutive [quarterly]
[semi-annual] interest periods or extend beyond the stated maturity of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, ACS may commence a new Extension Period, subject to the above
requirements. On the Distribution payment date at the end of an Extension
Period, payments of accumulated Distributions (including any Additional Amounts)
will be payable to Holders of Common Securities as they appear on the books and
records of the Trust (regardless of who the Holders may have been on other dates
during the Extension Period) on the record date for such Distribution payment
date.
(c) Distributions and Additional Amounts on the Common
Securities will be payable promptly by the Property Trustee (or other Paying
Agent) upon receipt of immediately available funds to the Holders thereof as
they appear on the books and records of the Trust on the relevant record dates.
While the Preferred Securities remain in book-entry only form, the relevant
record dates for the Common Securities shall be the Business Day next preceding
the relevant Distribution payment date, and if the Preferred Securities are no
longer in book-entry only form, the relevant record dates for the Common
Securities will be the close of business on the [________ ___, ________ ___,]
________ ___ and ________ ___ next preceding the relevant Distribution payment
date, which record and payment dates correspond to the record and interest
payment dates on the Debentures. Distributions and Additional Amounts payable on
any Common Securities that are not punctually paid on any Distribution payment
date as a result of ACS's having failed to make the corresponding payment on the
Debentures will forthwith cease to be payable to the Person in whose name such
Common Security is registered on the relevant record date, and such defaulted
payment will instead be payable to the Person in whose name such Common Security
is registered on the special record date established by the Regular Trustees,
which record date shall correspond to the special record date or other specified
date determined in accordance with the Indenture; provided, however, that
Distributions shall not be considered payable on any Distribution payment date
falling within an Extension Period unless ACS has elected to make a full or
partial payment of accrued interest on the Debentures on such Distribution
payment date. Subject to any applicable laws and regulations and the provisions
of
C-2
81
the Declaration, each payment in respect of the Common Securities will be made
as described in Section [9] hereof. If any date on which Distributions and
Additional Amounts are payable on the Common Securities is not a Business Day,
then payment of the Distribution and Additional Amounts payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable.
Notwithstanding anything herein to the contrary, the record dates and payment
dates for Distributions and Additional Amounts shall be the same as the record
dates and payment dates for the Debentures.
(d) All Distributions and Additional Amounts paid with respect
to the Preferred Securities and the Common Securities will be paid Pro Rata (as
defined below) to the Holders thereof entitled thereto. If an Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities with respect to such payments.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and the Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event
of any voluntary or involuntary dissolution of the Trust other than as
contemplated by Section 8.01(a) or (f) of the Declaration, the Holders of the
Preferred Securities and the Common Securities will be entitled to receive Pro
Rata solely out of the assets of the Trust legally available for distribution to
Holders of Preferred Securities and Common Securities after satisfaction of
liabilities to the creditors of the Trust, an amount equal to the aggregate of
the stated liquidation amount of $______ per Preferred Security and Common
Security plus accumulated and unpaid Distributions thereon and any Additional
Amounts with respect thereto to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution and
after satisfaction of liabilities to the creditors of the Trust, Debentures, in
an aggregate principal amount equal to the aggregate stated liquidation amount
of such Preferred Securities and the Common Securities and bearing accrued and
unpaid interest and Additional Amounts in an amount equal to the accumulated and
unpaid Distributions on and any Additional Amounts with respect to such
Preferred Securities and the Common Securities, shall be distributed Pro Rata to
the Holders of the Preferred Securities and the Common Securities in exchange
for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets on hand
legally available to pay in full the aggregate Liquidation Distribution, then
the amounts payable directly by the Trust on the Preferred Securities and the
Common Securities shall be paid, subject to the next paragraph, on a Pro Rata
basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except
C-3
82
that if an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to such
Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right
to direct the Property Trustee in writing at any time to dissolve the Trust and
to distribute Debentures to Holders in exchange for Securities (which direction
is optional and wholly within the discretion of the Holder of the Common
Securities). Upon the receipt of any such written direction, the Property
Trustee shall promptly (i) distribute Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities and the Common Securities held by each Holder, which Debentures bear
accrued and unpaid interest and Additional Amounts in an amount equal to the
accumulated and unpaid Distributions on and any Additional Amounts with respect
to the Preferred Securities and the Common Securities of such Holder, in
exchange for the Preferred Securities and Common Securities of such Holder and
(ii) dissolve the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed to
be outstanding and may be canceled by the Regular Trustees and (ii) Certificates
representing Common Securities will be deemed to represent beneficial interests
in the Debentures having an aggregate principal amount equal to the stated
liquidation amount of, and bearing accrued and unpaid interest and Additional
Amounts equal to accumulated and unpaid Distributions on and any Additional
Amounts with respect to, such Common Securities until such Certificates are
presented to ACS or its agent for cancellation and Debentures are issued in lieu
thereof. Debentures distributed to holders of such Certificates shall not be
issued in the form of a global certificate or certificates representing such
Debentures or any other form intended to facilitate book-entry trading in
beneficial interests in such Debentures.
4. REDEMPTION OF DEBENTURES. The Common Securities may be
redeemed only if Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and the Common
Securities are repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity, upon redemption at any time or from time to time [on or
after _________, ____], the proceeds of such repayment will be promptly applied
to redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
notice, at a redemption price [of $______ per Preferred Security and Common
Security plus an amount equal to accumulated and unpaid Distributions thereon
and any Additional Amounts with respect thereto to, but excluding, the date of
redemption, payable in cash (the "Redemption Price").] [equal to (i) in the case
of the optional redemption of the Debentures upon the occurrence and
continuation of a Special Event (as defined below), the Special Event Redemption
Price (as defined below) or (ii) in the case of the optional redemption of the
Debentures other than as contemplated in clause (i) above, the Optional
Redemption Price (as defined below). The Special Event Redemption Price and the
Optional Redemption Price are referred to collectively as the "Redemption
Price."] The date of any such repayment or
C-4
83
redemption of Preferred Securities and Common Securities shall be established to
coincide with the repayment or redemption date of the Debentures.
["Special Event Redemption Price" shall be equal to the
greater of (i) the liquidation amount of the Common Securities to be redeemed
and (ii) the Make-Whole Amount, in each case plus an amount equal to accumulated
and unpaid Distributions thereon and any Additional Amounts with respect thereto
to, but excluding, the date of redemption.
"Optional Redemption Price" shall be equal to the greater of
(i) the liquidation amount of the Common Securities to be redeemed and (ii) the
Make-Whole Amount, in each case plus an amount equal to accumulated and unpaid
Distributions thereon and any Additional Amounts with respect thereto to, but
excluding, the date of redemption.
"Make-Whole Amount" shall be equal to, as determined by the
Quotation Agent, the sum of the present values, calculated as of the redemption
date, of (i) each interest payment that would have been payable on the
Debentures or portions thereof being redeemed, if such Debentures or portions
thereof were not redeemed, on each scheduled interest payment date occurring
after the redemption date (excluding any accrued interest for the period prior
to the redemption date) and (ii) the principal amount of such Debentures or
portions thereof that would have been payable, if such Debentures or portions
thereof were not redeemed, at the scheduled maturity of such Debentures or
portions thereof being redeemed (the "Remaining Life"), in each case discounted
to the redemption date on a semiannual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate plus ___ basis points for the
purpose of calculating the Optional Redemption Price and ___ basis points for
the purpose of calculating the Special Event Redemption Price.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity date corresponding to the Remaining Life (if no maturity date is within
three months before or after the Remaining Life, yields for the two published
maturity dates most closely corresponding to the Remaining Life shall be
interpolated and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity date comparable to
the Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life. If
C-5
84
no United States Treasury security has a maturity date which is within a period
from three months before to three months after the Remaining Life, the two most
closely corresponding United States Treasury securities shall be used as the
Comparable Treasury Issue, and the Adjusted Treasury Rate shall be interpolated
or extrapolated on a straight-line basis, rounding to the nearest month using
such securities.
"Quotation Agent" means ________________ and its successors;
provided, however, that if the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), ACS
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with ACS.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of five Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (ii) if the Debenture Trustee obtains
fewer than five such Reference Treasury Dealer Quotations, the average of all
such quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debenture Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Debenture Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and
Common Securities are to be so redeemed, the Common Securities will be redeemed
as described in Section 4(e)(ii) below, and the Common Securities will be
redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the Redemption
Price. If a partial redemption would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed or traded, ACS pursuant to the
Indenture will redeem Debentures only in whole and, as a result, the Trust may
redeem the Common Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur and
be continuing, ACS shall have the right at any time [prior to ________ ___,
____], upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole [or][but not] in part for cash at the [Special Event]
Redemption Price within 90 days following the occurrence of such Special Event,
and promptly following such redemption, Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust at the
[Special Event] Redemption Price on a Pro Rata basis. The Common Securities will
be redeemed Pro Rata with the Preferred Securities, except that if an
C-6
85
Event of Default has occurred and is continuing, the Preferred Securities will
have a priority over the Common Securities with respect to payment of the
[Special Event] Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel, who shall not be an employee of the
Sponsor and who shall be 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 rules or regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to, or change in, an interpretation or application of any such
laws, rules or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation or the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement by any legislative body, court, governmental
agency or regulatory authority that provides for a position with respect to such
laws, rules or regulations that differs from its previous position or a
theretofore commonly accepted position or (d) any action taken by any
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after ________ ___, ____, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable by ACS to the Trust on the Debentures is not,
or within 90 days of the date thereof will not be, deductible by ACS for United
States Federal income tax purposes.
"Investment Company Event" means that the Sponsor and the
Regular Trustees shall have received an Opinion of Counsel, who shall not be an
employee of the Sponsor and who shall be experienced in practice under the
Investment Company Act, that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a
"Change in Investment Company Act Law"), there is more than an insubstantial
risk that the Trust is or will be considered an Investment Company that is
required to be registered under the Investment Company Act, which Change in
Investment Company Act Law becomes effective on or after ________ ___, ____.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accumulated and unpaid Distributions and Additional
Amounts have been paid on all Common Securities for all [quarterly]
[semi-annual] Distribution periods terminating on or prior to the date of
redemption.
(e) (i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and the Common
Securities (a "Redemption/Distribution Notice") will be given by the Regular
Trustees on behalf of the Trust by mail to each Holder of Preferred Securities
and Common Securities to be redeemed or exchanged not less than 30 nor more than
60 days prior to the date fixed for redemption or exchange thereof. For purposes
of the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and Common
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Preferred
C-7
86
Securities and Common Securities at the address of each such Holder appearing in
the books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in
respect of a redemption of Common Securities as provided in this Section 4, then
immediately prior to the close of business on the redemption date, provided that
ACS has paid the Property Trustee, in immediately available funds, a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, Distributions will cease to accumulate on the Common Securities
called for redemption, such Common Securities will no longer be deemed to be
outstanding and all rights of Holders of such Common Securities so called for
redemption will cease, except the right of the Holders of such Common Securities
to receive the Redemption Price, but without interest on such Redemption Price.
Neither the Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Common Securities which have been so called for
redemption. If any date fixed for redemption of Common Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect
of Common Securities is improperly withheld or refused and not paid by the
Property Trustee, Distributions on such Common Securities will continue to
accumulate, from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common Securities.
[5. CONVERSION RIGHTS. The Holders of Common Securities shall
have the right at any time prior to the close of business on ___________, ____
or, in the case of Common Securities called for redemption, prior to the close
of business on the Business Day immediately prior to the redemption date, at
their option, to cause the Conversion Agent to convert Common Securities, on
behalf of the converting Holders, into shares of Common Stock in the manner
described herein on and subject to the following terms and conditions:
(a) The Common Securities will be convertible at the office of
the Conversion Agent into fully paid and nonassessable shares of Common Stock
pursuant to the Holder's direction to the Conversion Agent to exchange such
Common Securities for a portion of the Debentures theretofore held by the Trust
on the basis of one Common Security per $______ principal amount of Debentures,
and immediately convert such amount of Debentures into fully paid and
nonassessable shares of Common Stock at an initial rate of __ shares of Common
Stock
C-8
87
per $_______ principal amount of Debentures (which is equivalent to a conversion
price of $___ per share of Common Stock, subject to certain adjustments set
forth in Sections ___ and ___ of the Supplemental Indenture (as so adjusted, the
"Conversion Price")).
(b) In order to convert Common Securities into shares of
Common Stock, the Holder shall submit to the Conversion Agent at the office
referred to above an irrevocable request to convert Common Securities on behalf
of such Holder (the "Conversion Request"), together, if the Common Securities
are in certificated form, with such Common Security Certificates. The Conversion
Request shall (i) set forth the number of Common Securities to be converted and
the name or names, if other than the Holder, in which the shares of Common Stock
should be issued and (ii) direct the Conversion Agent (a) to exchange such
Common Securities for a portion of the Debentures held by the Trust (at the rate
of exchange specified in the preceding paragraph) and (b) to immediately convert
such Debentures on behalf of such Holder into Common Stock, subject to certain
adjustments set forth in the Supplemental Indenture (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall notify the
Trust of the Holder's election to exchange Common Securities for a portion of
the Debentures held by the Trust and the Trust shall, upon receipt of such
notice, deliver to the Conversion Agent the appropriate principal amount of
Debentures for exchange in accordance with this Section. The Conversion Agent
shall thereupon notify the Sponsor of the Holder's election to convert such
Debentures into shares of Common Stock. If a Common Security is surrendered for
conversion after the close of business on any regular record date for payment of
a Distribution and before the opening of business on the corresponding
Distribution payment date, then, notwithstanding such conversion, the
Distribution payable on such Distribution payment date will be paid in cash to
the Person in whose name the Common Security is registered at the close of
business on such record date, and (other than a Common Security or a portion of
a Common Security called for redemption on a redemption date occurring after
such record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Common Security must be accompanied by payment
of an amount equal to the Distribution payable on such Distribution payment
date. Except as provided above, neither the Trust nor the Sponsor will make, or
be required to make, any payment, allowance or adjustment upon any conversion on
account of any accumulated and unpaid Distributions accumulated on the Common
Securities surrendered for conversion, or on account of any accumulated and
unpaid dividends on the shares of Common Stock issued upon such conversion, and
the delivery of shares of Common Stock upon conversion of the Common Securities
shall be deemed to constitute full payment for all accumulated and unpaid
Distributions on the Common Securities. Common Securities shall be deemed to
have been converted immediately prior to the close of business on the day on
which a Notice of Conversion relating to such Common Securities is received by
the Trust in accordance with the foregoing provision (the "Conversion Date").
The Person or Persons entitled to receive shares of Common Stock issuable upon
conversion of the Debentures shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the Conversion Date, the Sponsor shall issue deliver at the office
of the Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same, unless otherwise directed by the Holder in the
Notice of Conversion and the Conversion Agent shall distribute such certificate
or certificates, together with the applicable cash payment, if any, to such
Person or Persons.
C-9
88
(c) Each Holder of a Common Security by his acceptance thereof
appoints ___________________, as the "Conversion Agent" for the purpose of
effecting the conversion of Common Securities in accordance with this Section.
In effecting the conversion and transactions described in this Section, the
Conversion Agent shall be acting as agent of the Holders of Common Securities
directing it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Common Securities from time to time for
Debentures held by the Trust in connection with the conversion of such Common
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into shares of Common Stock and thereupon to deliver such
shares of Common Stock in accordance with the provisions of this Section and to
deliver to the Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(d) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
by the Sponsor in cash (based upon the Closing Price (as defined in the
Indenture) of shares of Common Stock on the date such Common Securities are
surrendered for conversion to the Trust) to the Conversion Agent, which in turn
will make such payment to the Holder or Holders of Common Securities so
converted, or, if such day is not a Trading Day (as defined in the Indenture),
on the next Trading Day.
(e) The Sponsor shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance upon the
conversion of the Debentures, free from any preemptive or other similar rights,
such number of shares of Common Stock as shall from time to time be issuable
upon the conversion of all the Debentures then outstanding. Notwithstanding the
foregoing, the Sponsor shall be entitled to deliver upon conversion of
Debentures, shares of Common Stock reacquired and held in the treasury of the
Sponsor (in lieu of the issuance of authorized and unissued shares of Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Common Stock issued
upon conversion of the Debentures shall be duly authorized, validly issued and
fully paid and nonassessable. The Trust shall deliver the shares of Common Stock
received upon conversion of the Debentures to the converting Holder of Common
Securities free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. Each of the Sponsor
and the Trust shall prepare and shall use its best efforts to obtain and keep in
force such governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all applicable requirements as to
registration or qualification of Common Stock (and all requirements to list
Common Stock issuable upon conversion of Debentures that are at the time
applicable), in order to enable the Sponsor to lawfully issue Common Stock to
the Trust upon conversion of the Debentures and the Trust to lawfully deliver
Common Stock to each Holder of Common Securities upon conversion of the Common
Securities.
(f) The Sponsor will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Common Stock on conversion of
Debentures and the delivery of the shares of Common Stock by the Trust upon
conversion of the Common Securities. The Sponsor shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that in which
the Common Securities so converted were registered, and no such issue or
delivery
C-10
89
shall be made unless and until the Person requesting such issue has paid to the
Trust the amount of any such tax, or has established to the satisfaction of the
Trust that such tax has been paid.]
(g) Nothing in the preceding paragraph (f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the Common
Securities or set forth in this Exhibit C to the Declaration or to the
Declaration itself or otherwise require the Property Trustee or the Trust to pay
any amounts on account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under paragraph
[6](b) below and as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) Holders of Common Securities have the sole right
under the Declaration to increase or decrease the number of Trustees, and to
appoint, remove or replace a Trustee, any such increase, decrease, appointment,
removal or replacement to be approved by Holders of Common Securities
representing a Majority of Outstanding Common Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration, other than as described in
Section 12.01(b) of the Declaration, or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.01
of the Declaration or Section 3 of this Exhibit C, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal as
a single class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities of at least a Majority of Outstanding
Securities, voting together as a single class; provided, however, that (A) if
any amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities, then only the affected
class of Securities will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of at
least a Majority of Outstanding Securities of such class, (B) the rights of
Holders of Common Securities under Section 5.01 of the Declaration to increase
or decrease the number of, and to appoint, replace or remove, Trustees shall not
be amended without the consent of each Holder of Common Securities, and (C)
amendments to the Declaration shall be subject to such further requirements as
are set forth in Sections 12.01 and 12.02 of the Declaration.
In the event the consent of the Property Trustee, as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority of Outstanding Securities voting together
as a single class; provided, however, that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified
C-11
90
percentage of the aggregate liquidation amount of the Securities, or, in the
case of clause (2) above, each Holder of Securities; and provided, further, that
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an Opinion of
Counsel experienced in such matters to the effect that the Trust will not be
classified for United States Federal income tax purposes as other than a grantor
trust on account of such action.
So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee of the Indenture (the
"Debenture Trustee"), or exercising any trust or power conferred on such
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 6.06 of the Indenture or (iii) exercise any right
to rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures, without, in each case, obtaining the prior approval
of the Holders of a Majority of Outstanding Common Securities and Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Common Securities except by subsequent
vote of such Holders. The Property Trustee shall notify each Holder of Common
Securities of any notice of default with respect to the Debentures.
Notwithstanding any other provision of these terms, each
Holder of Common Securities will be deemed to have waived any Event of Default
with respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Declaration or of the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in the Declaration, the Holders
of Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under the Declaration without any further act, vote or consent of the Holders of
the Common Securities.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the Declaration
in respect of the Securities.
Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies. Any action
that may be taken at a meeting of the Holders of Securities may be taken without
a meeting and without prior notice if a consent in writing setting forth the
C-12
91
action so taken is signed by Holders of Securities owning not less than the
minimum aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration or Section 3 of this Exhibit
C.
7. PRO RATA TREATMENT. A reference in these terms of the
Common Securities to any payment, Distribution or treatment as being "Pro Rata"
shall mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. RANKING. The Common Securities rank pari passu and payment
thereon will be made Pro Rata with the Preferred Securities, except that when an
Event of Default occurs and is continuing, the rights of Holders of Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise are subordinate to the rights of Holders of the
Preferred Securities.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of
Distributions and any Additional Amounts and payments on redemption of the
Common Securities will be payable, the transfer of the Common Securities will be
registrable, and Common Securities will be exchangeable for Common Securities of
other denominations of a like aggregate liquidation amount, at the corporate
trust office of the Property Trustee (or its Affiliate) in The City of New York;
provided that payment of Distributions and any Additional Amounts may be made at
the option of the Regular Trustees on behalf of the Trust by check mailed to the
address of the Persons entitled thereto and that the payment on redemption of
any Common Security will be made only upon surrender of such Common Security to
the Property Trustee. Notwithstanding the foregoing, transfers of Common
Securities are subject to conditions set forth in Section 9.01(c) of the
Declaration.
10. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities,
by the acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Common Securities
shall have no preemptive or similar rights to subscribe to any additional Common
Securities or Preferred Securities.
C-13
92
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Common Securities without charge on written request to the Trust
at its principal place of business.
C-14
93
Annex I
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities:
------------
-----------
Aggregate Liquidation Amount: $
------------
Certificate Evidencing Common Securities
of
ACS Trust [I] [II]
% [[Convertible] Trust Common Securities]
----
(liquidation amount $ per Common Security)
------
ACS Trust [I] [II], a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of
____________________________ (_________) common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
and designated the "____% [[Convertible] Trust Common Securities]" (liquidation
amount $______ per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this Certificate duly endorsed
and in proper form for transfer and satisfaction of the other conditions set
forth in the Declaration (as defined below) including, without limitation,
Section 9.01(c) thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this Certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated
Trust Agreement of the Trust dated as of __________, ____,
as the same may be amended from time to time (the "Declaration") including the
designation of the terms of Common Securities as set forth in Exhibit C thereto.
The Common Securities and the Preferred Securities issued by the Trust pursuant
to the Declaration represent undivided beneficial interests in the assets of the
Trust, including the Debentures (as defined in the Declaration) issued by
Affiliated Computer Services, Inc., a Delaware corporation, to the Trust
pursuant to the Indenture referred to in the Declaration. The Trust will furnish
a copy of the Declaration and the Indenture to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are
C-15
94
subordinate and junior in right of payment to all Senior Debt (as defined in the
Indenture) as and to the extent provided in the Indenture.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this Certificate this ___ day of _____________, ____.
ACS TRUST [I] [II]
By , as Regular Trustee
---------------------
Name:
Title: Regular Trustee
C-16
95
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount
of $______ per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions that are not
paid when such distributions are payable (or would be payable but for the
deferral of such payment pursuant to Section 2.1(b) below or a default by ACS in
the payment of interest on the Debentures) will accumulate additional
distributions thereon at the Coupon Rate per annum (to the extent permitted by
applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed. Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
Distributions on the Common Securities will accumulate from
________ ___, _____ and will be payable [quarterly] [semi-annually] in arrears,
on [________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, ACS has
the right under the Indenture for the Debentures to defer payments of interest
on the Debentures by extending the interest payment period of the Debentures at
any time and from time to time for a period not exceeding [20] [10] consecutive
[quarterly] [semi-annual] interest periods (each, an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred. Despite
such deferral, Distributions will continue to accumulate on the Common
Securities with additional distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded [quarterly]
[semi-annually] during any such Extension Period. No Extension Period shall
extend beyond the stated maturity of the Debentures. Prior to the termination of
any such Extension Period, ACS may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed [20] [10] consecutive [quarterly]
[semi-annual] interest periods or extend beyond the stated maturity of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, ACS may commence a new Extension Period, subject to the above
requirements. On the Distribution payment date at the end of an Extension
Period, payments of accumulated Distributions (including any Additional Amounts)
will be payable to Holders of Common Securities as they appear on the books and
records of the Trust (regardless of who the Holders may have been on other dates
during the Extension Period) on the record date for such Distribution payment
date.
C-17
96
The Common Securities shall be redeemable as provided in the
Declaration.
[The Common Securities shall be convertible into shares of
Common Stock (as defined in the Declaration), through (i) the exchange of Common
Securities for a portion of the Debentures and (ii) the immediate conversion of
such Debentures into Common Stock, in the manner and according to the terms set
forth in the Declaration.]
C-18
97
[CONVERSION REQUEST
To: ,
----------------
as Conversion Agent for ACS Trust [I] [II]
The undersigned owner of these Common Securities hereby
irrevocably exercises the option to convert these Common Securities, or the
portion below designated, into Common Stock (as that term is defined in the
Amended and Restated Trust Agreement dated as of ____________, ____ (as amended
from time to time, the "Declaration"), by Xxxxxxx X. Xxxxxxxxx, Xx. and Xxxxxx
Xxxxxxx, as Regular Trustees, Wilmington Trust Company, as the Delaware Trustee,
Wilmington Trust Company, as the Property Trustee, Affiliated Computer Service,
Inc., as Sponsor, and by the Holders, from time to time, of undivided beneficial
interests in the assets of the Trust to be issued pursuant to the Declaration)
in accordance with and subject to the terms and conditions of the Declaration.
Pursuant to the aforementioned exercise of the option to convert these Common
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in the Declaration) to (i) exchange such Common Securities for a portion
of the Debentures (as that term is defined in the Declaration) held by ACS Trust
[I] [II] (at the rate of exchange specified in the terms of the Common
Securities set forth as Exhibit C to the Declaration) and (ii) immediately
convert such Debentures on behalf of the undersigned, into Common Stock (at the
conversion rate specified in the terms of the Common Securities set forth as
Exhibit C to the Declaration), subject to certain adjustments set forth in the
Supplemental Indenture (as that term is defined in the Declaration).
The undersigned does also hereby direct the Conversion Agent
that the shares of Common Stock issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If shares of Common Stock are to be issued in the name
of a Person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto.
C-19
98
Date: ,
------------- -----
in whole in part
--- ---
Number of Common Securities to be
converted:
----------------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the
shares of Common Stock are to be issued,
along with the address or addresses of
such Person or Persons:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
Signature (for conversion only)
Please Print or Type Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
-----------------------------------------
-----------------------------------------
-----------------------------------------
Signature Guarantee:*
----------------
----------
*(Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
C-20
99
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
{Insert assignee's social security or tax identification number}
-----------------------------------------------------------------
-----------------------------------------------------------------
{Insert address and zip code of assignee}
and irrevocably appoints
-----------------------------------------------------------------
-----------------------------------------------------------------
____________________________________________________________ agent to transfer
this Common Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
-------------------------------
Signature:
--------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
C-21
