EXHIBIT 10(ii)
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AMENDED AND RESTATED TRUST AGREEMENT
AMONG
UNITED RENTALS HOLDINGS, INC.
as Depositor,
THE BANK OF NEW YORK
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of August 5, 1998
UNITED RENTALS TRUST I
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINED TERMS
Section 1.1.Definitions.................................2
ARTICLE 2
ESTABLISHMENT OF THE TRUST
Section 2.1. Name......................................16
Section 2.2. Office of the Delaware Trustee; Principal
Place of Business.........................16
Section 2.3. Organizational Expenses...................16
Section 2.4. Issuance of the Preferred Securities......16
Section 2.5. Subscription and Purchase of Debentures;
Issuance of the Common Securities.........16
Section 2.6. Declaration of Trust......................17
Section 2.7. Authorization to Enter into Certain
Transactions..............................17
Section 2.8. Assets of Trust...........................23
Section 2.9. Title to Trust Property...................23
ARTICLE 3
PROPERTY ACCOUNT
Section 0.0.Xxxxxxxx Account...........................23
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
Section 4.1. Distributions.............................24
Section 4.2. Redemption................................25
Section 4.3. Conversion................................28
Section 4.4. Special Event Exchange or Redemption......32
Section 4.5. Subordination of Common Securities........34
Section 4.6. Payment Procedures........................35
Section 4.7. Tax Returns and Reports...................35
Section 4.8. Payment of Taxes, Duties, Etc. of the
Trust.....................................35
Section 4.9. Payments under Indenture..................36
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ARTICLE 5
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership..............................36
Section 5.2. The Trust Securities Certificates..............36
Section 5.3. Delivery of Trust Securities Certificates......37
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities; Restrictions on
Transfer.......................................37
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates........................40
Section 5.6. Persons Deemed Securityholders.................41
Section 5.7. Access to List of Securityholders' Names
and Addresses................................41
Section 5.8. Maintenance of Office or Agency..............42
Section 5.9. Appointment of Paying Agent..................42
Section 5.10. Ownership of Common Securities by Depositor..43
Section 5.11. Global Securities; Non-Global Securities;
Common Securities Certificate................43
Section 5.12. Notices to Clearing Agency...................45
Section 5.13. Definitive Preferred Securities Certificates.45
Section 5.14. Rights of Securityholders....................45
Section 5.15. Restrictive Legends..........................46
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.................47
Section 6.2. Notice of Meetings...........................49
Section 6.3. Meetings of Preferred Securityholders........50
Section 6.4. Voting Rights................................50
Section 6.5. Proxies, Etc.................................50
Section 6.6. Securityholder Action by Written Consent.....51
Section 6.7. Record Date for Voting and Other Purposes....51
Section 6.8. Acts of Securityholders......................51
Section 6.9. Inspection of Records........................53
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
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PAGE
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Section 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.............54
Section 7.2. Representations and Warranties of Depositor..55
ARTICLE 8
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities..........56
Section 8.2. Notice of Defaults...........................58
Section 8.3. Certain Rights of Property Trustee...........60
Section 8.4. Not Responsible for Recitals or Issuance of
Securities...................................63
Section 8.5. May Hold Securities..........................64
Section 8.6. Compensation; Indemnity; Fees................64
Section 8.7. Property Trustee Required; Eligibility of
Trustees.....................................65
Section 8.8. Conflicting Interests........................65
Section 8.9. Resignation and Removal; Appointment of
Successor....................................66
Section 8.10. Acceptance of Appointment by Successor.......68
Section 8.11. Merger, Conversion, Consolidation or
Succession to Business.......................69
Section 8.12. Preferential Collection of Claims Against
Depositor or Trust...........................69
Section 8.13. Reports by Property Trustee..................69
Section 8.14. Reports to the Property Trustee..............70
Section 8.15. Evidence of Compliance with Conditions
Precedent....................................70
Section 8.16. Number of Trustees...........................71
Section 8.17. Delegation of Power..........................71
Section 8.18. Appointment of Administrative Trustees.......71
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination upon Expiration Date.............72
Section 9.2. Early Termination............................72
Section 9.3. Termination..................................73
Section 9.4. Liquidation..................................73
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust....................75
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ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders......77
Section 10.2. Amendment....................................77
Section 10.3. Separability.................................79
Section 10.4. GOVERNING LAW................................79
Section 10.5. Payments Due on Non-Business Day.............79
Section 10.6. Successors...................................79
Section 10.7. Headings.....................................79
Section 10.8. Reports, Notices and Demands.................79
Section 10.9. Agreement Not to Petition....................80
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act................................81
Section 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE......................81
Section 10.12. Counterparts.................................81
ARTICLE 11
REGISTRATION RIGHTS
Section 11.1. Registration Rights..........................82
EXHIBIT A Certificate of Trust of United Rentals Trust I
EXHIBIT B Form of Common Securities of United Rentals Trust I
EXHIBIT C Form of Preferred Securities of United Rentals Trust I
EXHIBIT D Form of Restricted Securities Certificate
EXHIBIT E Form of Unrestricted Securities Certificate
EXHIBIT F Notice of Conversion
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UNITED RENTALS TRUST I*
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the Trust Indenture Act of
1939:
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
Section 310(a)(1).....................................8.7
(a)(2)................................................8.7
(a)(4).........................................2.7(a)(ii)
(b)...................................................8.8
Section 311(a).......................................8.12
(b)..................................................8.12
Section 312(a)........................................5.7
(b)...................................................5.7
(c)...................................................5.7
Section 313(a)....................................8.13(a)
(c)..................................................10.8
(d)...............................................8.13(c)
(a)(4)............................................8.13(b)
(b)...............................................8.13(b)
Section 314(a).......................................8.14
(b)........................................Not Applicable
(c)(1)...............................................8.15
(c)(2)...............................................8.15
(c)(3).....................................Not Applicable
(d)........................................Not Applicable
(e).............................................1.1, 8.15
Section 315(a).............................8.1(a), 8.3(a)
(b).............................................8.2, 10.8
(c)................................................8.1(a)
(d)..............................................8.1, 8.3
(e)........................................Not Applicable
Section 316(a).............................Not Applicable
(a)(1)(A)..................................Not Applicable
(a)(1)(B)..................................Not Applicable
(a)(2).....................................Not Applicable
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TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
(b).............................Not Applicable
(c)........................................6.7
Section 317 (a)(1)..........................Not Applicable
(b)........................................5.9
Section 318 (a)......................................10.10
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* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 5, 1998 among (i)
United Rentals Holdings, Inc., a Delaware corporation (including any successors
or assigns, "the Depositor"), (ii) The Bank of New York, a New York banking
corporation, as property trustee (in such capacity, the "Property Trustee" and,
in its personal capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a corporation duly organized and
existing under the laws of the State of Delaware, as Delaware trustee (in such
capacity, the "Delaware Trustee") and (iv) Xxxx X. Xxxxx, an individual, Xxxxxxx
X. Xxxxx, an individual, and Xxxxxx X. Xxxxx, an individual, each of whose
address is c/o United Rentals Holdings, Inc., Four Xxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, (each, an "Administrative Trustee" and,
collectively, the "Administrative Trustees" and, collectively with the Property
Trustee and Delaware Trustee, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of July
22 , 1998 (the "Original Trust Agreement"), and by the execution and filing by
certain of the Trustees with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on July 22, 1998, attached as Exhibit A, for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust (as defined herein) and
investing the proceeds thereof in the Debentures (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance and sale of the Common Securities (as
defined herein) by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the Purchase
Agreement (as defined herein) and (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other party and for
the benefit of the Holders (as defined herein) of the Preferred Securities,
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1. Definitions. For all purposes of this Trust Agreement,
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except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
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"Additional Amount" means, with respect to the Trust Securities, the amount
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of Additional Interest (as defined in the Indenture) paid by the Depositor on
the Debentures.
"Additional Sums" means, with respect to the Trust Securities, the amount
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of Additional Sums (as defined in the Indenture) paid by the Depositor on the
Debentures.
"Administrative Trustee" means each of Xxxx X. Xxxxx, Xxxxxxx X. Xxxxx and
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Xxxxxx X. Xxxxx, each solely in his capacity as Administrative Trustee of the
Trust formed and continued hereunder and not in his individual capacity, or such
Administrative
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Trustee's successor in interest in such capacity, or any successor in interest
in such capacity, or any successor administrative trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
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Depositor shall not be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
---------------------
involving a Global Certificate or beneficial interest therein, the rules and
procedures of the Clearing Agency for such security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
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"Bankruptcy Event" means, with respect to any Person:
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(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become
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due and its willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
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"Board of Directors" means either the board of directors of the Depositor
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or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
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in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a day on
------------
which banking institutions in The City of New York are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the principal corporate trust office of the
Debenture Trustee is closed for business.
"Certificated Preferred Security" means a Preferred Security in registered,
-------------------------------
certificated form.
"Clearing Agency" means an organization registered as a "clearing agency"
---------------
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended, that
has been designated to act as depositary for the Preferred Securities pursuant
to the Certificate Depositary Agreement. The Depository Trust Company will be
the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
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institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the date of original issuance of the Preferred
------------
Securities.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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"Common Securities Certificate" means a certificate evidencing ownership of
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Common Securities, substantially in the form attached as Exhibit B.
"Common Securities Subscription Agreement" means the Common Securities
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Purchase Agreement, dated as of August 5, 1998, between United Rentals Trust I
and United Rentals Holdings, Inc.
"Common Security" means an undivided beneficial interest in the assets of
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the Trust, having a Liquidation Preference with respect to the assets of the
Trust of $50 and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Common Stock" means common stock of the Depositor, par value $0.01 per
------------
share.
"Conversion Agent" has the meaning specified in Section 4.3.
----------------
"Conversion Date" has the meaning specified in Section 4.3.
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"Conversion Expiration Date" means the date selected by the Depositor not
--------------------------
less than 30 days nor more than 60 days after the date on which the Depositor
issues a press release announcing its intention to terminate the conversion
rights of the Holders.
"Conversion Price" has the meaning specified in Section 4.3.
----------------
"Corporate Trust Office" means the principal corporate trust office of the
----------------------
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Trustee
Administration.
"Current Market Price", with respect to Common Stock, means for any day the
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last reported sale price, regular way, on such day, or, if no sale takes place
on such day, the average of the reported closing bid and asked prices on such
day, regular way, in either case as reported on the New York Stock Exchange
Consolidated Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if Common Stock is not quoted or admitted to trading on such
quotation system, on the
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principal quotation system on which Common Stock may be listed or admitted to
trading or quoted, or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average of the closing bid
and asked prices of Common Stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors.
"Debenture Event of Default" means an "Event of Default" as defined in the
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Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
-------------------------
redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"Debenture Trustee" means The Bank of New York, a New York banking
-----------------
corporation, as trustee under the Indenture.
"Debentures" means $309,278,350 ($360,824,750 if the over-allotment option
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is exercised in full) aggregate principal amount of the Depositor's 6 1/2%
convertible subordinated debentures issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as the
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context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
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Code, 12 Del. C. Sections 3801, et. seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
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the preamble to this Trust Agreement solely in its capacity as Delaware Trustee
of the Trust formed and continued hereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
---------
Agreement.
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"Direct Action" has the meaning specified in Section 6.8.
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"Distribution Date" has the meaning specified in Section 4.1(a).
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"Distributions" means amounts payable in respect of the Trust Securities as
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provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
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"Event of Default" means the occurrence of a Debenture Event of Default,
----------------
whatever the reason for such Debenture Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
"Exchange Notice" has the meaning specified in Section 4.4(b).
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"Expiration Date" has the meaning specified in Section 9.1.
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"Global Certificate" means a Preferred Security that is registered in the
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Securities Register in the name of a Clearing Agency or a nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered by the
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Depositor and The Bank of New York, a New York banking corporation, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Holder" means a Person in whose name a Trust Securities Certificate
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representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Convertible Subordinated Indenture, dated as of
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August 5, 1998 between the Depositor and the Debenture Trustee, as amended or
supplemented from time to time.
"Investment Company Event" means the receipt by the Property Trustee, on
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behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having a
recognized national tax and securities practice (which Opinion of Counsel shall
not have been rescinded by such law firm), to the effect that, as a result of
the occurrence
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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 1940 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 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
----
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Liquidated Damages" has the meaning specified in the Indenture.
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"Liquidation Preference" means an amount with respect to the assets of the
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Trust equal to $50 per Trust Security.
"Liquidation Date" means each date on which Debentures or cash are to be
----------------
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
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"Majority in Liquidation Preference of Preferred Securities" means, except
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as provided by the Trust Indenture Act, a vote by the holder(s), voting
separately as a class of more than 50% of the aggregate Liquidation Preference
of all the outstanding Preferred Securities issued by the Trust.
"Market Price" means on any trading day, the closing price of a Preferred
------------
Security on such trading day as determined by the Board of Directors of the
Depositor and Xxxxxxx, Xxxxx & Co. in good faith by agreement, or in the event
that no such agreement can be reached, the average of the mid-point of the last
bid and ask prices for a Preferred Security from each of at least three
nationally recognized investment banking firms which trade Preferred Securities,
to be selected for this purpose by the Board of Directors of the Depositor and
Xxxxxxx, Sachs & Co. in good faith by agreement.
"1940 Act" means the Investment Company Act of 1940, as amended.
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"Notice of Conversion" means the notice given by a holder of Trust
--------------------
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Debentures and to convert such Debentures into Common
Stock on behalf of such holder. Such notice is substantially in the form set
forth in Exhibit F.
"Officers' Certificate" means a certificate signed by (i) the Chairman of
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the Board, the Chief Executive Officer, the President or a Vice President, and
by (ii) the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.15 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant of condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
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for the Trust, the Property Trustee or the Depositor, and who may be an employee
of any thereof, and who shall be reasonably acceptable to the Property Trustee.
Any Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each individual signing the Opinion of Counsel has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the Opinion of Counsel;
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(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below, with respect
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to the Trust Securities, the following percentages of the Liquidation Preference
thereof, plus accrued and unpaid Distributions, if any, to the date fixed for
redemption if redeemed during the twelve-month period commencing August 1
(August 2 with regards to 2001) in each of the following years indicated:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
2001 104.55% 2005 101.95%
2002 103.90% 2006 101.30%
2003 103.25% 2007 100.65%
2004 102.60% 2008 and thereafter 100.00%
The aggregate Liquidation Preference of the Trust Securities so redeemed
will equal the aggregate principal amount of Debentures redeemed by the
Depositor, which may not exceed the amount of the proceeds derived, directly or
indirectly, by the Depositor from the issuance and sale of Common Stock within
12 months preceding the date fixed for redemption. The Depositor may not redeem
the Trust Securities in any case unless all accrued and unpaid Distributions
have been paid in full on all outstanding Preferred Securities for all quarterly
distribution periods terminating prior to and including the Redemption Date.
In the event of a redemption of Debentures upon the occurrence of a Tax
Event, Trust Securities shall be redeemed at the Tax Redemption Price thereof
together with accrued and unpaid Distributions to, but excluding, the Redemption
Date.
If at any time following the Conversion Expiration Date, less than 5% of
the Preferred Securities offered hereby remain Outstanding, such Preferred
Securities shall be redeemable at the option of the Trust, in whole but not in
part, at a Redemption Price of $50 per Preferred Security, plus all accrued and
unpaid Distributions.
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"Original Trust Agreement" has the meaning specified in the recitals to
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this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
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date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities Registrar or
delivered to the Securities Registrar for cancellation or tendered for
conversion;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
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Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Section 5.5;
provided, however, that in determining whether the Holders of the requisite
-------- -------
Liquidation Preference of the Outstanding Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Trust Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Trust Securities that such Trustee actually knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the Outstanding Trust Securities are owned by the Depositor, one or more
of the Trustees and/or any such Affiliate. Trust Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Securities Registrar the pledgee's right
so to act with respect to such Trust Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
-----
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
11
"Paying Agent" means any paying Agent or co-paying Agent appointed pursuant
------------
to Section 5.9.
"Person" means any individual, corporation, estate, partnership, joint
------
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof or any
other entity of whatever nature.
"Preferred Securities Certificate" means a certificate evidencing ownership
--------------------------------
of Preferred Securities, substantially in the form attached as Exhibit C.
"Preferred Security" means an undivided beneficial interest in the assets
------------------
of the Trust, having a Liquidation Preference with respect to the assets of the
Trust of $50 and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Property Account" means a segregated non-interest bearing corporate trust
----------------
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures will be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Section 4.1.
"Property Trustee" means the commercial bank or trust company identified as
----------------
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of July 30,
------------------
1998 among the Trust, the Depositor, United Rentals and the Purchasers named
therein.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
---------------
each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $50 per Trust
----------------
Security, plus accumulated and unpaid Distributions (including any Additional
Sums) to the date of redemption.
12
"Registration Rights Agreement" means the Registration Rights Agreement,
-----------------------------
dated August 5, 1998, among the Depositor, the Trust, United Rentals, and the
Purchasers named in the Purchase Agreement.
"Relevant Trustee" has the meaning specified in Section 8.9.
----------------
"Restricted Securities" means all Preferred Securities required pursuant to
---------------------
Section 5.4 to bear any Restricted Securities Legend. Such term includes the
Global Certificate.
"Restricted Securities Certificate" means a certificate substantially in
---------------------------------
the form set forth in Exhibit D.
"Restricted Securities Legend" has the meaning specified in Section
----------------------------
5.15(a).
"Rule 144A Preferred Securities" has the meaning specified in Section 5.2.
------------------------------
"Securities Act Legend" means a Restricted Securities Legend.
---------------------
"Securities Register" and "Securities Registrar" have the respective
------------------- --------------------
meanings specified in Section 5.4.
"Securityholder" has the same meaning as "Holder."
--------------
"Special Event" means a Tax Event or an Investment Company Event.
-------------
"Successor Property Trustee" has the meaning specified in Section 8.9(b).
--------------------------
"Successor Delaware Trustee" has the meaning specified in Section 8.9(c).
--------------------------
"Successor Securities" has the meaning specified in Section 9.5.
--------------------
"Tax Event" means the receipt by the Property Trustee, on behalf of the
---------
Trust, of an Opinion of Counsel, rendered by a law firm having a national tax
and securities practice (which Opinion of Counsel shall not have been rescinded
by such law firm), to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment
13
or change is effective or such pronouncement or decision is announced on or
after the date of issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk in each case after the date
thereof that (i) the Trust is, or will be within 90 days after the date thereof,
subject to United State federal income tax with respect to income received or
accrued on the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, within 90 days after the date thereof,
deductible, in whole or in part, for United States federal income tax purposes
or (iii) the Trust is, or will be within 90 days after the date thereof, subject
to more than de minimus amount of other taxes, duties, assessments or other
governmental charges.
"Tax Redemption Price" means, with respect to a Debenture or a Trust
--------------------
Security, on any redemption date (A) prior to August 2 , 2001, the greater of
(i) the principal amount of such Debenture or the Liquidation Preference of such
Trust Security, as applicable; and (ii) the greater of (a) the average of the
Market Price of a Trust Security over the five trading days immediately
preceding the day on which the notice of redemption (the "Redemption Notice") is
given by the Debenture Trustee or the Property Trustee, as applicable; and (b)
the Market Price of a Trust Security on the trading day immediately preceding
the day on which the Redemption Notice is given by the Property Trustee; and (B)
on or after August 2, 2001, the principal amount of the Debenture or the
Liquidation Preference of such Preferred Security, as applicable.
"Trust" means the Delaware business trust continued hereby and identified
-----
on the cover page of this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
---------------
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
-------------------
the date as of which this instrument was executed; provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.
14
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
--------------
owing to, the Property Account and (c) all proceeds and rights in respect of the
foregoing to be held by the Property Trustee pursuant to the terms of this Trust
Agreement for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the Preferred
--------------
Securities.
"Trust Securities Certificate" means any one of the Common Securities
----------------------------
Certificates, the Global Certificates or the Certificated Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
--------
and the Administrative Trustees.
"Unrestricted Securities Certificate" means a certificate substantially in
-----------------------------------
the form set forth in Exhibit E.
"United Rentals" means United Rentals, Inc., a Delaware corporation.
--------------
ARTICLE 2
ESTABLISHMENT OF THE TRUST
Section 2.1. Name. The Trust created hereby shall be known as "United
----
Rentals Trust I", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
-----------------------------------------------------------
The address of the Delaware Trustee in the State of Delaware is Xxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Department, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is Four Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
Section 2.3. Organizational Expenses. The Depositor shall pay
-----------------------
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
15
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4. Issuance of the Preferred Securities. On July 30, 1998, the
------------------------------------
Depositor and an Administrative Trustee on behalf of the Trust executed and
delivered the Purchase Agreement. On the Closing Date, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Sections 5.2
and 5.3 and deliver to the Purchasers named in the Purchase Agreement Preferred
Securities Certificates, in an aggregate amount of 6,000,000 Preferred
Securities having an aggregate Liquidation Preference of $300,000,000, against
receipt of the aggregate purchase price of such Preferred Securities of
$300,000,000, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
Section 2.5. Subscription and Purchase of Debentures; Issuance of the
--------------------------------------------------------
Common Securities. Contemporaneously with the execution and delivery of this
-----------------
Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor the Debentures, by sending the
$309,278,350 purchase price to the Property Trustee registered in the name of
the Property Trustee (in its capacity as such) and having an aggregate principal
amount equal to $309,278,350, and, in satisfaction of the purchase price for
such Debentures, the Property Trustee, on behalf of the Trust, shall deliver to
the Depositor the sum of $309,278,350. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor the Common Securities Certificates
registered in the name of the Depositor, in an aggregate amount of 185,567
Common Securities having an aggregate Liquidation Preference of $9,278,350
against receipt of the aggregate purchase price of such Common Securities from
the Depositor in the amount of $9,278,350.
Section 2.6. Declaration of Trust. The exclusive purposes and functions
--------------------
of the Trust are (a) to issue and sell Trust Securities and use the proceeds
from such sale to acquire the Debentures, (b) to distribute the Trust's income
as provided in this Trust Agreement and (c) to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
16
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions. (a) The
------------------------------------------------
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in Section 2.6 and
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the exclusive power, duty and the
authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) to issue and sell the Trust Securities; 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 Trust Securities, and the issuance of Trust Securities shall
be limited to simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date, subject to the issuance of
Trust Securities pursuant to Section 5.5 and Successor Securities
pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Registration Rights Agreement, the
Purchase Agreement, the Common Securities Purchase Agreement and the
Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and function of the Trust;
17
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended (the "Securities Act"),
and under state securities or blue sky laws, and the qualification of
this Trust as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration the Preferred Securities under the
Securities Exchange of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing (only to the extent that listing or registration is
requested by the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating Agent in accordance with this Trust Agreement;
(F) to the extent provided in this Trust Agreement, to wind up the
affairs of and liquidate the Trust and prepare, execute and file the
certificate of cancellation with the Secretary of State of the State
of Delaware;
(G) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any other
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust Agreement;
and
(H) to take any action incidental to the foregoing as the Trustees
may from time to time
18
determine is or advisable to give effect to the terms of this Trust
including, but not limited to:
(x) causing the Trust not to be deemed to be an "investment
company" required to be registered under 1940 Act;
(y) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(z) cooperating with the Depositor to ensure that the
Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes;
provided that such action does not adversely affect in any material
respect the interests of Securityholders except as otherwise provided
in Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Property Account;
(B) the receipt of and taking title to the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Property Account;
(D) the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
19
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up
of the affairs of and liquidation of the Trust and the execution of
the certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default, the taking of any action incidental
to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
(J) subject to this Section 2.7(a)(ii), the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i); and
(K) to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust shall not, and the Trustees shall not and
shall cause the Trust not to (i) invest any proceeds received by the Trust from
holding the Debentures (rather, the Trustees shall distribute all such proceeds
to the Securityholders pursuant to the terms of this Trust Agreement and the
Trust Securities), acquire any investments or
20
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States federal
income tax purposes, (iv) make any loans or incur any indebtedness for borrowed
money or issue any other debt, (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (vi) possess any
power or otherwise act in such a way as to vary the Trust assets or the terms of
the Trust Securities in any way whatsoever except as permitted by the terms of
this Trust Agreement, or (vii) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other than the
Trust Securities. The Administrative Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following actions (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to file pursuant to the Registration Rights Agreement with the
Commission and to execute on behalf of the Trust a registration statement
on the appropriate form in relation to the Preferred Securities, including
any amendments thereto;
(ii) to determine the states and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and prepare for execution
and filing any documents to be executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such states and foreign
jurisdictions;
(iii) to the extent necessary, to prepare for filing by the Trust with
the Commission and to execute on behalf of the Trust a registration
statement on Form 8-A relating to the registration of the
21
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto (it
being understood that neither the Trust nor the Depositor has any
obligation under the Indenture, the Purchase Agreement or the Trust
Agreement to register any Trust Securities under the Securities Exchange
Act of 1934 or to list any Trust Securities on any securities exchange);
(iv) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust; and
(v) any other actions necessary or incidental to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or taxed as a corporation
for United States federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect in
any material respect the interests of the Holders of the Preferred Securities
except as otherwise provided in Section 10.2(a).
Section 2.8. Assets of Trust. The assets of the Trust shall consist of
---------------
only the Trust Property.
Section 2.9. Title to Trust Property. Legal title to all Trust Property
-----------------------
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Trust Agreement. Each
Securityholder shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
22
ARTICLE 3
PROPERTY ACCOUNT
Section 3.1. Property Account. (a) On or prior to the Closing Date, the
----------------
Property Trustee shall establish the Property Account. The Property Trustee and
any Agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Property Account for the purpose of making
deposits in and withdrawals from the Property Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time to
time in the Property Account shall be held by the Property Trustee in the
Property Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Property Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Property Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
Section 4.1. Distributions. (a) Distributions on the Trust Securities
-------------
shall be cumulative, and shall accrue from the date of original issuance, or the
most recent Distribution Date (as defined herein) and, except in the event that
the Depositor exercises its right to defer the payment of interest on the
Debentures pursuant to the Indenture, shall be payable quarterly in arrears on
February 1, May 1, August 1 and November 1 of each year, commencing on November
1, 1998 (which dates correspond to the interest payment dates on the
Debentures), when, as and if available for payment by the Property Trustee, as
further described in paragraph (c) of this Section 4.1. In the event that the
Depositor exercises its right to defer the payment of interest on the Debentures
pursuant to the Indenture, quarterly distributions on the Preferred Securities
will be deferred by the Trust during any such deferral period and will
accumulate additional Distributions thereon at the rate per annum set forth
herein, compounded quarterly for the relevant payment date for such
Distributions. If any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such Distributions
shall be made on the next succeeding day which is a Business Day (and without
any additional interest or other payment in respect of any such delay), with the
same
23
force and effect as if made on such date (each date on which Distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and the Distributions on the Trust Securities shall be payable
at a rate of 6 1/2% per annum of the Liquidation Preference of the Trust
Securities, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. The amount of Distributions payable for any
period shall be computed on the basis of a 360-day year comprised of twelve 30-
day months. For periods less than a full month, Distributions shall reflect
interest on Debentures computed on the basis of the actual number of elapsed
days based on a 30-day month based on a 360-day year. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Property Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Property Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the date which is the fifteenth day (whether or not a Business Day) next
preceding such Distribution Date.
Section 4.2. Redemption. (a) Upon an optional redemption (as set forth
----------
in the Indenture) of Debentures, the proceeds from such redemption shall be
applied to redeem Trust Securities having an aggregate Liquidation Preference
equal to the aggregate principal amount of the Debentures so redeemed by the
Depositor, including pursuant to Section 4.4, at the Optional Redemption Price,
and upon a mandatory redemption (as set forth in the Indenture) of Debentures,
the proceeds from such redemption shall be applied to redeem Trust Securities
having an aggregate Liquidation Preference equal to the aggregate principal
amount of the Debentures so redeemed by the Depositor, at the Redemption Price.
(b) Notice of redemption (which notice will be irrevocable) shall be given
by the Property Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to the Depositor and
each Holder of Trust Securities to be redeemed, at such Holder's address as it
appears in the Securities Register. All notices of redemption shall state:
24
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as the
case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Preference of
the particular Trust Securities to be redeemed;
(v) (A) that a Holder of Preferred Securities who desires to convert
such Preferred Securities called for redemption must satisfy the
requirements for conversion contained in Section 4.3 below, (B) the
Conversion Price and (C) if previously determined, the Conversion
Expiration Date;
(vi) that on the Redemption Date the Redemption Price or the Optional
Redemption Price, as the case may be, will become due and payable upon each
such Trust Security to be redeemed and that Distributions thereon will
cease to accrue on and after said date unless the Depositor defaults in
payment of the Redemption Price; and
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional Redemption
Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price or the Optional Redemption Price, as the case may be,
with the proceeds from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price or the Optional
Redemption Price, as the case may be, shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Property Account for the payment of such Redemption Price or the Optional
Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 11:00 a.m., New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, so long as and to
the extent
25
the Preferred Securities are in book-entry-only form, irrevocably deposit with
the Clearing Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Preferred Securities are no longer in book-
entry only form, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price or Optional Redemption Price, as the case may be, on such
Preferred Securities held in certificated form and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price or the
Optional Redemption Price, as the case may be, to the Holders thereof upon
surrender of their Preferred Securities Certificates. Payment of the Redemption
Price to Holders of the Preferred Securities called for redemption shall be made
to the applicable Holders of such Trust Securities as they appear on the
Securities Register on the relevant record date, which shall be the date which
is the fifteenth day (whether or not a Business Day) prior to the Redemption
Date. Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price or the
Optional Redemption Price, as the case may be, but without interest, and such
Trust Securities will cease to be Outstanding. In the event that any date on
which any Redemption Price or the Optional Redemption Price, as the case may be,
is payable is not a Business Day, then payment of the Redemption Price or the
Optional Redemption Price, as the case may be, payable on such date will be made
on the next succeeding day which is a Business Day (and without any additional
interest or other payment in respect of any such delay), with the same force and
effect as if made on such date, except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day.
(e) If less than all the Outstanding Trust Securities are to be redeemed on
a Redemption Date, then the aggregate Liquidation Preference of Trust Securities
to be redeemed shall be allocated on a pro rata basis (based on Liquidation
Preferences) among the Common Securities and the Preferred Securities that are
to be redeemed. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, pro rata, by lot or by such other method as the Property Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $50 or an integral
26
multiple of $50 in excess thereof) of the Liquidation Preference of the
Preferred Securities. The Property Trustee shall promptly notify the Securities
Registrar and the Conversion Agent in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Preference thereof to be redeemed; it
being understood that, in the case of Preferred Securities registered in the
name of and held of record by the Clearing Agency (or any successor) or any
nominee, the distribution of the proceeds of such redemption will be made in
accordance with the procedures of the Clearing Agency or its nominee. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Preference of Preferred Securities which has been
or is to be redeemed. In the event of any redemption in part, the Trust shall
not be required to (i) issue, register the transfer of or exchange any Preferred
Security during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption for Preferred Securities and ending at the
close of business on the date of such mailing or (ii) register the transfer of
or exchange on any Preferred Securities so selected for redemption, in whole or
in part, except for the unredeemed portion of any Preferred Securities being
redeemed in part.
Section 4.3. Conversion. The Holders of Trust Securities, subject to the
----------
limitations set forth in this Section, shall have the right at any time prior to
the Conversion Expiration Date, at their option, to cause the Conversion Agent
to convert Trust 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:
(i) The Trust Securities will be convertible into validly issued,
fully paid and nonassessable shares of Common Stock pursuant to the
Holder's direction to the Conversion Agent to exchange such Trust
Securities for a portion of the Debentures, and immediately convert such
amount of Debentures into validly issued, fully paid and nonassessable
shares of Common Stock at an initial rate of 1.14593 shares of Common Stock
for each Trust Security (which is equivalent to a conversion price of
$43.6325 per $50 principal amount of Debentures), subject to certain
adjustments set forth in the Indenture (as so adjusted, "Conversion
Price").
(ii) In order to convert Trust Securities into Common Stock, the
Holder of such Trust Securities shall submit to the Conversion
27
Agent an irrevocable Notice of Conversion to convert Trust Securities on
behalf of such Holder, together, if the Trust Securities are in
certificated form, with such certificates. The Notice of Conversion shall
(x) set forth the number of Trust 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 (y) direct the Conversion Agent (a) to exchange such
Trust Securities for a portion of the Debentures held by the Property
Trustee (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 (at the conversion rate specified in the preceding paragraph).
The Conversion Agent shall notify the Property Trustee of the Holder's
election to exchange Trust Securities for a portion of the Debentures held
by the Property Trustee and the Property Trustee shall, upon receipt of
such notice, deliver to the Conversion Agent the appropriate principal
amount of Debentures for exchange in accordance with this Section 4.3. The
Conversion Agent shall thereupon notify the Depositor of the Holder's
election to convert such Debentures into shares of Common Stock. Holders of
Trust Securities at the close of business on a Distribution payment record
date will be entitled to receive the Distribution payable on such Trust
Securities on the corresponding Distribution Date notwithstanding the
conversion of such Trust Securities on or following such record date but
prior to such Distribution Date. Except as provided above, neither the
Trust nor the Depositor will make, or be required to make, any payment,
allowance or adjustment upon any conversion on account of any accumulated
and unpaid Distributions whether or not in arrears accrued on the Trust
Securities surrendered for conversion, or on account of any accumulated and
unpaid dividends on the shares of Common Stock issued upon such conversion.
Trust Securities shall be deemed to have been converted immediately prior
to the close of business on the day on which an irrevocable Notice of
Conversion relating to such Trust Securities is received by the Conversion
Agent in accordance with the foregoing provision (the "Conversion Date").
The Person or Persons entitled to receive the Common Stock issuable upon
conversion of the Debentures shall be treated for all purposes as the
record holder or holders of such Common Stock on the date of conversion. As
promptly as practicable on or after the Conversion Date, the Depositor
shall issue and deliver, or shall cause to be issued and delivered, at the
office of the Conversion Agent a certificate or
28
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
and cash to such Person or Persons.
(iii) On and after August 2, 2001, the Depositor may, at its option,
cause the conversion rights of holders of the Debentures (and the
corresponding conversion rights of Holders of Trust Securities) to expire;
provided, however, that the Depositor may exercise this option only if for
-------- -------
20 trading days within any period of 30 consecutive trading days, including
the last trading day of such period, the Current Market Price of Common
Stock exceeds 120% of the Conversion Price.
In order to exercise its option to cause the conversion rights of the
holders of the Debentures to expire (and the corresponding rights of
Holders of Trust Securities to expire), the Depositor must provide a notice
of the expiration of conversion rights to the Property Trustee and must
issue a press release for publication on the Dow Xxxxx News Service
announcing the Conversion Expiration Date prior to the opening of business
on the second trading day after any period in which the condition in the
preceding sentence has been met, but in no event prior to August 2, 2001.
The press release shall announce the Conversion Expiration Date (which may
not occur sooner than 30 nor more than 60 days after the Depositor issues
the press release announcing its intention to terminate the conversion
rights of the Debentures) and provide the current Conversion Price of the
Preferred Securities and the Current Market Price of the Common Stock, in
each case as of the close of business on the trading day next preceding the
date of the press release. Conversion rights will terminate at the close
of business on the Conversion Expiration Date.
The Depositor, or at the request of the Depositor, the Property
Trustee, shall send notice of the expiration of conversion rights by first-
class mail to the Holders of the Trust Securities and the holders of the
Debentures not more than four Business Days after the Depositor issues the
press release or, if the Property Trustee is requested to send such notice,
which request shall be made on the date of such press release, promptly
after the Depositor delivers written
29
instructions to the Property Trustee containing the information required by
the next sentence to be in the notice. Such mailed notice of the expiration
of the conversion rights of the Holders shall state: (A) the Conversion
Expiration Date; (B) the Conversion Price of the Trust Securities and the
Current Market Price of the Common Stock, in each case as of the close of
business on the Business Day next preceding the date of the notice of
expiration of the conversion rights of the Holders; (C) the place or places
at which Trust Securities may be surrendered prior to the Conversion
Expiration Date for certificates representing shares of Common Stock; and
(D) such other information or instruments as the Depositor deems necessary
or advisable to enable a Holder to exercise its conversion right hereunder.
No defect in the notice of expiration of the conversion rights of the
Holders or in the mailing thereof with respect to any Trust Security shall
affect the validity of such notice with respect to any other Trust
Security. As of the close of business on the Conversion Expiration Date,
the Debentures (and correspondingly, the Trust Securities) shall no longer
be convertible into Common Stock. In the event that the Depositor does not
exercise its option to terminate the conversion rights of the Debentures,
the Conversion Expiration Date with respect to the Trust Securities will be
the close of business two Business Days preceding the date set for
redemption of the Trust Securities upon the mandatory or optional
redemption of the Debentures.
(iv) Each Holder of a Trust Security by its acceptance thereof
initially appoints The Bank of New York not in its individual capacity but
solely as conversion Agent (the "Conversion Agent") for the purpose of
effecting the conversion of Trust Securities in accordance with this
Section 4.3. In effecting the conversion and transactions described in
this Section 4.3, the Conversion Agent shall be acting as agent of the
Holders of Trust Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized to (i) exchange
Trust Securities from time to time for Debentures held by the Trust in
connection with the conversion of such Trust Securities in accordance with
this Section 4.3 and (ii) convert all or a portion of the Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Section 4.3 and to deliver to the
Property Trustee any new Debenture or Debentures for any resulting
unconverted
30
principal amount delivered to the Conversion Agent by the Debenture
Trustee.
(v) No fractional shares of Common Stock will be issued as a result of
conversion, but, in lieu thereof, such fractional interest will be paid in
cash by the Depositor to the Conversion Agent in an amount equal to the
Current Market Price of the fractional share of the Common Stock, and the
Conversion Agent will in turn make such payment to the Holder or Holders of
Trust Securities so converted.
(vi) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Agreement or otherwise required of the Property Trustee
or by law or the Trust to pay any amounts on account of such withholdings.
Section 4.4. Special Event Exchange or Redemption. (a) If a Special Event
------------------------------------
shall occur and be continuing, the Administrative Trustees shall give notice of
such Special Event to the Property Trustee and shall direct the Conversion Agent
to exchange all Outstanding Trust Securities for Debentures having a principal
amount equal to the aggregate Liquidation Preference of the Trust Securities to
be exchanged and with accrued interest in an amount equal to any unpaid
Distribution (including any Additional Amounts) on the Trust Securities;
provided, however, that, in the case of a Tax Event, the Depositor shall have
-------- -------
the right to (i) direct that less than all, or none, as appropriate, of the
Trust Securities be so exchanged if and for so long as the Depositor shall have
elected to pay any Additional Sums (as defined in the Indenture) such that the
net amounts received by Holders of Trust Securities not so exchanged in respect
of Distributions and other distributions are not reduced as a result of such Tax
Event, and shall not have revoked any such election or failed to make such
payments or (ii) cause the Trust Securities to be redeemed in the manner set
forth below. If a Tax Event shall occur or be continuing, the Depositor shall
have the right, upon not less than 30 nor more than 60 days' notice, to redeem
the Debentures, in whole but not in part, for cash at the Tax Redemption Price,
plus accrued and unpaid interest thereon. Promptly following such redemption,
Trust Securities with an aggregate Liquidation Preference equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust at
the Tax Redemption Price, plus accrued and unpaid Distributions thereon to the
Redemption Date on a pro rata basis.
31
(b) Notice of any exchange pursuant to this Section 4.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be irrevocable,
will be given by the Property Trustee by first-class mail to the Depositor and
to each record Holder of Trust Securities to be exchanged not fewer than 30 nor
more than 60 days prior to the date fixed for exchange thereof. For purposes of
the calculation of the date of exchange and the dates on which notices are given
pursuant to this paragraph (b), an Exchange Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage prepaid, to
each Holder. Each Exchange Notice shall be addressed to each Holder of Trust
Securities at the address of such Holder appearing in the books and records of
the Trust. Each Exchange Notice shall state: (A) the exchange date; (B) the
aggregate Liquidation Preference and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so exchanged
shall be exchanged for Debentures and that Distributions on the Trust Securities
so exchanged will cease to accumulate on and after said date; and (D) the
identity of the Conversion Agent, if any, and the place or places where each
Trust Certificate to be exchanged is to be surrendered in exchange for
Debentures. No defect in the Exchange Notice or in the mailing thereof with
respect to any Trust Security shall affect the validity of the exchange
proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred Securities
are to be exchanged, then, on the exchange date, (i) if all of the Outstanding
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the particular Preferred Securities to be exchanged will be
selected by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption or exchange on a pro rata basis, (ii) if all of
the Outstanding Preferred Securities are represented by Book-Entry Preferred
Securities Certificates, the Property Trustee shall provide for the selection
for exchange of a portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates on a pro rata basis and (iii) if Outstanding
Trust Securities are represented by both Definitive Preferred Securities
Certificates and Book-Entry Preferred Securities Certificates, the Property
Trustee shall select the portion of the Global Certificate representing the
Book-Entry Preferred Securities Certificates and the particular Outstanding
Preferred Securities represented by Definitive Preferred Securities Certificates
to be exchanged on a pro rata basis. In the case of clause (ii) or (iii) above,
the particular Book-Entry Preferred Securities Certificates to be exchanged
shall be selected in accordance with the applicable rules and procedures for the
Clearing Agency in whose name, or whose nominee's name, such Global Certificate
32
is then held. Any Preferred Securities Certificate that is to be exchanged only
in part shall be surrendered with due endorsement or by a written instrument of
transfer fully executed by the Holder thereof (or its attorney duly authorized
in writing) and the Trust shall prepare and deliver to such Holder, without
service charge, a new Preferred Securities Certificate or Certificates in
aggregate stated Liquidation Preference equal to, and in exchange for, the
unredeemed portion of the Preferred Securities Certificate so surrendered. The
Common Securities shall be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the date
fixed for any such exchange, (i) if the Preferred Securities are represented by
Book-Entry Preferred Securities Certificates, the Clearing Agency of its
nominee, as the record Holder of such Preferred Securities, will exchange
through the Conversion Agent the Global Certificate representing the Preferred
Securities to be exchanged for a registered Global Certificate or certificates
representing the Debentures to be delivered upon such exchange, (ii) if the
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the certificates representing the Preferred Securities to be so
exchanged will be deemed to represent Debentures having a principal amount equal
to the aggregate stated Liquidation Preference of such Preferred Securities
until such certificates are presented to the Conversion Agent for exchange for
definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Agreement pursuant to Section
10.11 of this Agreement, will be deemed to have agreed to be bound by these
exchange provisions in regard to the exchange of Trust Securities for Debentures
pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the Trust to
withhold taxes pursuant to the terms of the Trust Securities, as set forth in
this Agreement or under applicable law or otherwise require the Property Trustee
or the Trust to pay any amounts on account of such withholdings.
Section 4.5. Subordination of Common Securities. Payment of
----------------------------------
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Preference of the Trust Securities; provided, however,
-------- -------
that if on any Distribution Date or Redemption Date an Event of Default shall
have occurred and
33
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or the Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called upon for redemption, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
Section 4.6. Payment Procedures. Payments in respect of the Preferred
------------------
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
Section 4.7. Tax Returns and Reports. The Administrative Trustees shall
-----------------------
prepare (or cause to be prepared), at the Depositor's expense, and file (or
cause to be filed) all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) Form 1041 or the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder a Form 1099 or the appropriate Internal Revenue Service
form required to be furnished to such Securityholder or the information required
to be provided on such form. The Administrative Trustees shall provide (or
cause to be provided) the Depositor and the Property Trustee with a copy of all
such returns, reports and schedules promptly after such filing or furnishing.
The Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
Section 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
-------------------------------------------
under the Debentures of Additional Sums, the Property Trustee, upon receipt of
34
written notice from the Depositor or the Administrative Trustees, shall promptly
pay from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes), as indicated in such notice,
imposed on the Trust by the United States or any other taxing authority.
Section 4.9. Payments under Indenture. Any amount payable hereunder to
------------------------
any Holder of Preferred Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership. Upon the formation of the Trust and
-----------------
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
Section 5.2. The Trust Securities Certificates. The Preferred Securities
---------------------------------
Certificates shall be issued in minimum denominations of $50 Liquidation
Preference and integral multiples of $50 in excess thereof, and the Common
Securities Certificates shall be issued in denominations of $50 Liquidation
Preference and integral multiples thereof. The consideration received by the
Trust for the issuance of the Trust Securities shall constitute a contribution
to the capital of the Trust and shall not constitute a loan to the Trust.
Preferred Securities initially sold to qualified institutional buyers in
reliance on Rule 144A under the Securities Act ("Rule 144A Preferred
Securities") initially will be represented by one or more certificates in
registered, global form (collectively, the "Global Certificates"). The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and the Preferred
Securities Certificates shall be authenticated by the Property Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder,
35
upon due registration of such Trust Securities Certificate in such transferee's
name pursuant to Section 5.4.
Section 5.3. Delivery of Trust Securities Certificates. On the Closing
-----------------------------------------
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Preference as provided in Sections 2.4 and 2.5, to be
executed on behalf of the Trust and delivered to or upon the written order of
the Depositor, signed by its Chairman of the Board, any Vice Chairman, its
President, any Executive Vice President or any Vice President, Treasurer or
Assistant Treasurer or Controller without further corporate action by the
Depositor, in authorized denominations.
A Common Securities Certificate shall not be valid until executed by at
least one Administrative Trustee. A Preferred Securities Certificate shall not
be valid until authenticated by the manual signature of an authorized signatory
of the Property Trustee. The signature shall be conclusive evidence that the
Preferred Securities Certificate has been authenticated under this Trust
Agreement. Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities
Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to the
Administrative Trustees to authenticate Preferred Securities Certificates. An
authenticating agent may authenticate Preferred Securities Certificates whenever
the Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such agent.
An authenticating agent has the same rights as the Property Trustee to deal with
the Depositor or an Affiliate with respect to the authentication of Preferred
Securities.
Section 5.4. Registration of Transfer and Exchange of Preferred
--------------------------------------------------
Securities; Restrictions on Transfer. (a) The Securities Registrar shall keep
------------------------------------
or cause to be kept, at the office or agency maintained pursuant to Section 5.8,
a Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Subject to the other provisions of this Trust Agreement regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security at an office or agency of the Depositor designated pursuant
to Section 5.8 for such
36
purpose, the Depositor shall execute, and the Property Trustee shall
authenticate and make available for delivery, in the name of the designated
transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, and subject to the other provisions of this
Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Preference,
upon surrender of the Preferred Securities to be exchanged at any such office or
agency. Whenever any Preferred Securities are so surrendered for exchange, the
Depositor shall execute, and the Property Trustee shall authenticate and make
available for delivery, the Preferred Securities which the Holder making the
exchange is entitled to receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be the valid obligations of the Trust,
evidencing the same rights, and entitled to the same benefits under this Trust
Agreement, as the Securities surrendered upon such registration of transfer or
exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Depositor or the
Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the Securities
Registrar duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
(b) Notwithstanding any other provision of this Trust Agreement or the
Preferred Securities, transfers and exchanges of Preferred Securities and
beneficial interests in a Global Certificate of the kinds specified in this
Section 5.4(b) shall be made only in accordance with this Section 5.4(b).
A Preferred Security that is not a Global Certificate may be transferred,
in whole or in part, to a Person who takes delivery in the form of another
Preferred Security that is not a Global Certificate as provided in Section 5.11,
provided that, if the Preferred Security to be transferred in whole or in part
is a Restricted Security, then the Property Trustee shall have received a
Restricted Securities Certificate,
37
satisfactory to the Property Trustee and duly executed by the transferor Holder
or such Holder's attorney duly authorized in writing, in which case the
transferee Holder shall take delivery in the form of a Restricted Security.
(c) Securities Act Legends. Rule 144A Preferred Securities, Certificated
----------------------
Preferred Securities and their respective Successor Securities shall bear a
Restricted Securities Legend as set forth in Section 5.15, subject to the
following:
(i) subject to the following Clauses of this Section 5.4(c), a
Preferred Security or any portion thereof which is exchanged, upon transfer
or otherwise, for a Global Certificate or any portion thereof shall bear
the Securities Act Legend borne by such Global Certificate while
represented thereby;
(ii) subject to the following Clauses of this Section 5.4(c), a new
Preferred Security which is not a Global Certificate and is issued in
exchange for another Preferred Security (including a Global Certificate) or
any portion thereof, upon transfer or otherwise, shall bear the Securities
Act Legend borne by such other Preferred Security, provided that, if such
new Preferred Security is required pursuant to Section 5.4(b) to be issued
in the form of a Restricted Security, it shall bear a Restricted Securities
Legend;
(iii) any Preferred Securities which are sold or otherwise disposed of
pursuant to an effective registration statement under the Securities Act
(including in the Shelf Registration contemplated by the Registration
Rights Agreement), together with their Successor Securities shall not bear
a Securities Act Legend; the Depositor shall inform the Property Trustee in
writing of the effective date of any such registration statement
registering the Preferred Securities under the Securities Act and shall
notify the Property Trustee at any time when prospectuses may not be
delivered with respect to Preferred Securities to be sold pursuant to such
registration statement. The Property Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in connection with
the aforementioned registration statement;
(iv) at any time after the Preferred Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a
38
new Preferred Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Preferred Security (other than a
Global Certificate) or any portion thereof which bears such a legend if the
Property Trustee has received an Unrestricted Securities Certificate,
satisfactory to the Property Trustee and duly executed by the Holder of
such legended Preferred Security or such Holder's attorney duly authorized
in writing, and after such date and receipt of such certificate, the
Property Trustee shall authenticate and make available for delivery such a
new Preferred Security in exchange for or in lieu of such other Preferred
Security as provided in this Article 5;
(v) a new Preferred Security which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Preferred Security
(other than a Global Certificate) or any portion thereof which bears such a
legend if, in the Depositor's judgment, placing such a legend upon such new
Preferred Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Property Trustee,
at the direction of the Depositor, shall authenticate and make available
for delivery such a new Preferred Security as provided in this Article 5;
and
(vi) notwithstanding the foregoing provisions of this Section 5.4(c),
a Successor Security of a Preferred Security that does not bear a
particular form of Securities Act Legend shall not bear such form of legend
unless the Depositor has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144 under
the Securities Act, in which case the Property Trustee, at the direction of
the Depositor, shall authenticate and make available for delivery a new
Preferred Security bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article 5.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates. If (a) any mutilated Trust Securities Certificate shall be
------------
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall
39
have been acquired by a bona fide purchaser, the Administrative Trustees, or any
one of them, on behalf of the Trust shall execute and make available for
authentication, where applicable, and delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section 5.5, the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicative Trust Securities Certificate issued pursuant to this Section 5.5
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time. In case any
such mutilated, destroyed, lost or stolen Trust Security has become or is about
to become due and payable, the Trust in its discretion may, instead of issuing a
new Trust Security, pay such Trust Security.
Section 5.6. Persons Deemed Securityholders. The Property Trustee and
------------------------------
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.7. Access to List of Securityholders' Names and Addresses. The
------------------------------------------------------
Administrative Trustees or the Depositor shall furnish or cause to be furnished
(unless the Property Trustee is acting as Securities Registrar with respect to
the Trust Securities under the Trust Agreement) a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date (a) to the Property Trustee,
quarterly at least 5 Business Days before each Distribution Date, and (b) to the
Property Trustee, as promptly as practicable after receipt by the Depositor of a
request therefor from the Property Trustee in order to enable the Property
Trustee to discharge its obligations under this Trust Agreement, in each case to
the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities, and the corresponding rights of the
Trustee shall be as provided in the Trust Indenture Act, except to the extent
Section 3819 of the Delaware Business Trust Act would require greater access to
such information, in which case the latter shall apply. Each Holder, by
receiving and holding a Trust
40
Securities Certificate, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency. The Securities Registrar
-------------------------------
shall maintain in The City of New York an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Trustee Administration, as its
principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
Section 5.9. Appointment of Paying Agent. In the event that the
---------------------------
Preferred Securities are not in book-entry form only, the Trust shall maintain
in The City of New York, an office or agency (the "Paying Agent") where the
Preferred Securities may be presented for payment. The Paying Agent shall make
Distributions to Securityholders from the Property Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds
from the Property Account for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the
Paying Agent if such Trustees determine in their sole discretion that the Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material respect. The Paying Agent shall initially be the Property Trustee,
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor in their sole discretion. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Property Trustee and the Depositor. In the event
that the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor that is reasonably acceptable to the Property
Trustee and the Depositor to act as Paying Agent (which shall be a bank or trust
company). Each successor Paying Agent or any additional Paying Agent shall
agree with the Trustees that, as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to each Securityholder. The Paying Agent
shall return all
41
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property
Trustee also in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On the Closing
-------------------------------------------
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. To the fullest extent permitted by law, any attempted
transfer of the Common Securities shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Global Securities; Non-Global Securities; Common Securities
-----------------------------------------------------------
Certificate. (a) Each Global Certificate authenticated under this Trust
-----------
Agreement shall be registered in the name of the Clearing Agency designated by
the Depositor for such Global Certificate or a nominee thereof and delivered to
such Clearing Agency or a nominee thereof or custodian therefor, and each such
Global Certificate shall constitute a Preferred Security for all purposes of
this Trust Agreement.
(b) If a Global Certificate is to be exchanged for Certificated Preferred
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Clearing Agency, its nominee or custodian to the Property Trustee, as Securities
Registrar, for exchange or cancellation as provided in this Article 5. If any
Global Certificate is to be exchanged for Certificated Preferred Securities or
canceled in part, or if another Preferred Security is to be exchanged in whole
or in part for a beneficial interest in any Global Certificate, in each case, as
provided in Section 5.4, then either (i) such Global Certificate shall be so
surrendered for exchange or cancellation as provided in this Article 5 or (ii)
the Liquidation Preference thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the
principal amount of such Certificated Preferred Security to be so exchanged for
a beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Property Trustee, as Securities Registrar,
whereupon the Property Trustee shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Certificate, the Property
Trustee shall, subject to Section 5.4 and as otherwise provided in this Article
5, authenticate and make available for delivery any Preferred Securities
42
issuable in exchange for such Global Certificate (or any portion thereof) to or
upon the order of, and registered in such names as may be directed by, the
Clearing Agency or its authorized representative.
Upon the request of the Property Trustee in connection with the occurrence
of any of the events specified in the preceding paragraph, the Depositor shall
cause as promptly as practicable to be made available to the Property Trustee a
reasonable supply of Preferred Securities that are not in the form of Global
Certificates. The Property Trustee shall be entitled to conclusively rely upon
any order, direction or request of the Clearing Agency or its authorized
representative which is given or made pursuant to this Article 5 if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
(c) Every Preferred Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Certificate or any
portion thereof, whether pursuant to this Article 5 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Certificate,
unless such Preferred Security is registered in the name of a Person other than
the Clearing Agency for such Global Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a Global
Certificate, shall be the holder of such Global Certificate for all purposes
under the Trust Agreement and the Preferred Securities, and owners of beneficial
interests in a Global Certificate shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such Owner's beneficial interest in a
Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee or its participants and such owners of beneficial interests in a Global
Certificate will not be considered the owners or holders of such Global
Certificate for any purpose of this Trust Agreement or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency. To the extent that a notice or
--------------------------
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
43
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to provide notices directly to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
--------------------------------------------
Notwithstanding any other provision in this Trust Agreement, no Global
Certificate may be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Global Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Certificate or a nominee thereof unless (i) such Clearing Agency (A) has
notified the Depositor that it is unwilling or unable to continue as Clearing
Agency for such Global Certificate or (B) has ceased to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended, and in
either case the Trust and the Depositor thereupon fails to appoint a successor
Clearing Agency, (ii) the Depositor, at its option, notifies the Property
Trustee in writing that it elects to cause the issuance of the Preferred
Securities in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default. In all cases, Certificated Preferred
Securities delivered in exchange for any Global Certificate or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Clearing Agency (in accordance
with its customary procedures).
Section 5.14. Rights of Securityholders. The legal title to the Trust
-------------------------
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Securityholders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights and,
when issued and delivered to Securityholders against payment of the purchase
price therefor, will be validly issued, fully paid and nonassessable by the
Trust. The Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
Section 5.15. Restrictive Legends. The Global Certificate and the
-------------------
Certificated Preferred Securities that are Restricted Securities shall bear the
following legend (the "Restricted Securities Legend") unless the Depositor
determines otherwise in accordance with applicable law:
44
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION AND THE DEBENTURES THAT MAY BE ISSUED IN EXCHANGE THEREFOR HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND
MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO
A PERSON WHO SUCH PURCHASER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. THE COMPANY, THE TRUSTEE, THE TRANSFER
AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE,
PLEDGE OR TRANSFER TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY BE COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights. (a) Except as provided in
----------------------------
this Section 6.1, in Section 8.9 and 10.2 and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with respect to
the Preferred Securities has occurred and been subsequently cured, waived or
otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof shall apply.
During (x) the period commencing on the date of the occurrence of an Event of
Default with respect to the Preferred Securities and ending on the date when
such Event of Default
45
is cured, waived or otherwise eliminated, or (y) any period not described in
either the preceding sentence or the preceding clause (x), the provisions of
Section 6.1(b)(i) shall apply.
(i) The holders of a majority in aggregate Liquidation Preference of
the Preferred Securities will have 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 Trust Agreement, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder
of the Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are held by
the Property Trustee, the Trustees shall not (A) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to such Debentures, (B) waive any past
default which is waivable under Section 5.13 of the Indenture, (C) exercise
any right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of a majority in aggregate Liquidation Preference
of all Outstanding Preferred Securities (except in the case of clause (D),
which consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of all Trust Securities, voting
together as a single class); provided, however, that where a consent under
-------- -------
the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Preferred Securities.
The Trustees shall not revoke any action previously authorized or approved
by a vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities. The Property
Trustee shall notify all Holders of record of the Preferred Securities of
any notice of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees
46
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States federal income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated, the holders of a majority in aggregate
Liquidation Preference of the Common Securities will have 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 Trust
Agreement, including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Debentures but excluding
the right to direct the Property Trustee to consent to an amendment,
modification or termination of the Indenture (which shall be as provided
below). So long as any Debentures are held by the Property Trustee, the
Trustees shall not (A) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with respect to such
Debentures, (B) waive any past default which is waivable under Section 5.13
of the Indenture, (C) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Preference of all Common Securities (except in the
case of clause (D), which consent, in the event that no Event of Default
shall occur and be continuing, shall be of the Holders of all Trust
Securities, voting together as a single class); provided, however, that
-------- -------
where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by
the Property Trustee without the prior written consent of each Holder of
Common Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Common Securities,
except by a subsequent vote of the Holders of the Common Securities. The
Property Trustee shall notify all Holders of record of the Common
Securities of any notice of default received from the
47
Debenture Trustee with respect to the Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Common Securities, prior to
taking any of the foregoing actions, the Trustees shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association taxable
as a corporation or partnership for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities, as a class, will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of a majority in aggregate
Liquidation Preference of the Outstanding Preferred Securities.
Section 6.2. Notice of Meetings. Notice of all meetings of the Holders
------------------
of the Preferred Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.3. Meetings of Preferred Securityholders. No annual meeting of
-------------------------------------
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Preference) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of the Holders of Preferred Securities to vote on any matters as to
which such Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Preference), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record of Preferred Securities present, in person or by proxy, holding more than
a majority of the Preferred Securities (based upon their Liquidation Preference)
held
48
by Holders of record of Preferred Securities present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.4. Voting Rights. Securityholders shall be entitled to one
-------------
vote for each $50 of Liquidation Preference represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote. Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Depositor, the
Trustees or any affiliate of any Trustee shall, for purposes of such vote or
consent, be treated as if such Preferred Securities were not outstanding.
Section 6.5. Proxies, Etc. At any meeting of Securityholders, any
-------------
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or represented by
proxy in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6. Securityholder Action by Written Consent. Any action which
----------------------------------------
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Preference) entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes. For the purposes
-----------------------------------------
of determining the Securityholders who are entitled to notice of and to vote at
any
49
meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the Property
Trustee may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Securityholders or the payment of Distributions or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
Section 6.8. Acts of Securityholders. Any request, demand,
-----------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than the signer's individual capacity,
such certificate or affidavit shall also constitute sufficient proof of the
signer's authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in
50
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Preference of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Preference.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the holders of
Preferred Securities shall rely on the enforcement by the Property Trustee of
its rights as holder of the Debentures against the Depositor. In addition, the
holders of Majority in Liquidation Preference of the Preferred Securities will
have 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 to exercise the remedies
available to its as a holder of Debentures. If the Property Trustee fails to
enforce its rights as holder of the Debentures after a request therefor by a
holder of Preferred Securities, such holder may proceed to enforce such rights
directly against the Depositor. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Depositor to pay interest or principal on the Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the Redemption Date), then a holder of Preferred Securities shall
have the right to institute a proceeding directly against the Depositor, for
enforcement of payment to such holder of the principal amount of or interest on
Debentures having a principal amount equal to the aggregate Liquidation
Preference of the Preferred Securities of such holder after the respective due
date specified in the Debentures (a "Direct Action"). In connection with any
such Direct Action, the rights of the Depositor will be subrogated to the rights
of any such holder of the Preferred Securities to the extent of any payment made
by the Depositor to such holder of Preferred Securities as a result of such
Direct Action.
51
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any Person or entity.
Section 6.9. Inspection of Records. Upon reasonable notice to the
---------------------
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee and
----------------------------------------------------------
the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
--------------------
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Delaware Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement;
(d) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of the Property Trustee and the Delaware
Trustee enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
52
(e) the execution, delivery and performance by each of the Property Trustee
and the Delaware Trustee of this Trust Agreement have been duly authorized by
all necessary corporate or other action on the part of the Property Trustee and
the Delaware Trustee and does not require any approval of stockholders of the
Property Trustee or the Delaware Trustee and such execution, delivery and
performance will not (i) violate either of the Property Trustee's or the
Delaware Trustee's charter or by-laws, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States, the State
of New York or the State of Delaware, as the case may be, governing the banking,
corporate, or trust powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(f) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or agency under any
existing federal law governing the banking, corporate or trust powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States, the State of New York or the State of Delaware;
(g) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Depositor. The Depositor
-------------------------------------------
hereby represents and warrants for the benefit of the Securityholders that:
53
(a) the Trust Securities Certificates issued on the Closing Date on behalf
of the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities. (a) The duties and
-----------------------------------
responsibilities of the Trustees shall be as provided by this Trust Agreement
and, in the case of the Property Trustee, by the Trust Indenture Act. The
Property Trustee, before the occurrence of any 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 and obligations as are specifically set
forth in this Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a responsible officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such rights and powers
vested in it by this Trust Agreement and the Trust Indenture Act, and use the
same degree of care and skill in its exercise, as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs. Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release the Administrative Trustees from
liability for their own grossly negligent action, their own grossly negligent
failure to act, or their own willful misconduct. To
54
the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Administrative Trustee's good faith
reliance on the provisions of this Trust Agreement or advice of counsel. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in Liquidation Preference of the
Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this Trust
Agreement;
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(iii) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property
Account shall be to deal with such property as fiduciary assets, subject to
the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the
Depositor and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) neither the Property Trustee nor the Administrative Trustees
shall be responsible for monitoring each other's compliance or the
compliance of the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee or the Administrative Trustees be
liable for each other's default or misconduct or that of the Depositor.
Section 8.2. Notice of Defaults. (a) Within ten days after the
------------------
occurrence of any Event of Default actually known to the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.8, notice of such Event of Default to the holders of Preferred
Securities, the Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived; provided, that, except for a default in
-------- ----
the payment of principal of (or premium, if any) or interest on 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 Preferred Securities.
(b) Within thirty days after the receipt of notice of the Depositor's
exercise of its right to extend the interest payment period for the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Securityholders, unless such exercise shall have been revoked.
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(c) The Holders of a majority in Liquidation Preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any Event of Default in respect of the Preferred Securities
and its consequences, provided that, if the underlying Debenture Event of
Default:
(i) is not waivable under the Indenture, the Event of Default under
the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Trust
Agreement may only be waived by the vote of the Holders of the same
proportion in Liquidation Preference of the Preferred Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(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 Trust
Agreement and the Preferred 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 Trust Agreement, but no
such waiver shall extend to any subsequent or other default or an 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 Trust
Agreement without any further act, vote, or consent of the Holders of the Common
Securities.
(d) The Holders of a majority in Liquidation Preference of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any Event of Default with respect to the Common Securities and
its consequences; provided, that, if the underlying Debenture Event of Default:
-------- ----
(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
this Trust Agreement as provided below in
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this Section 8.2(d), the Event of Default under this Trust Agreement 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 Trust Agreement as provided below in this
Section 8.2(d), the Event of Default under this Trust Agreement may only be
waived by the vote of the Holders of the same proportion in Liquidation
Preference of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to have
-------- -------
waived any such Event of Default and all Events 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 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 provisions of Section 6.1(b) and this Section 8.2(d)
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 Trust Agreement and the Preferred Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
8.2(d), 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 Trust Agreement, 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.
(e) A waiver of a Debenture Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default under this Trust
Agreement. The foregoing provisions of this Section 8.2(e) 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 Trust Agreement
and the Preferred Securities, as permitted by the Trust Indenture Act.
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Section 8.3. Certain Rights of Property Trustee. Subject to the
----------------------------------
provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel , certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) if no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
-------- -------
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate and an Opinion of
Counsel which,
59
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to accomplish any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection (which
counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; and the Property Trustee
shall have the right at any time, upon prior notice to the Depositor, to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee security or
indemnity satisfactory to the Property Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolutions, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by Holders of record of 25% or more of the
Preferred Securities (based upon their Liquidation Preference), but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys or an Affiliate, provided that the Property Trustee shall be
responsible for its own negligence, recklessness or bad faith with respect to
selection of any Agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any
60
remedy or right or taking any other action hereunder, the Property Trustee (i)
may request instructions from the Holders of the Trust Securities, which
instructions may only be given by the Holders of the same proportion in
Liquidation Preference of the Trust Securities as would be entitled to direct
the Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
(k) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Trust Agreement;
(l) the Trustee shall not be deemed to have notice of any default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Trust Securities and this Trust Agreement;
(m) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder; and
(n) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Trust Securities Certificates shall not be
taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for
61
their correctness. The Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
Section 8.5. May Hold Securities. Except as provided in the definition
-------------------
of the term "Outstanding" in Article 1, any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Section 8.8 and 8.12, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
Section 8.6. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
(a) to pay the Trustees from time to time such compensation for all
services rendered by them hereunder as the parties shall agree from time to time
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates (referred
to herein as an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation or
termination of the Trust or 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 Trust Agreement, including the
costs and expense of defending itself against any claim (whether asserted by the
Trust, a Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder; provided,
--------
however that no Indemnified Person shall be entitled to be indemnified in
-------
respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful
62
misconduct with respect to such acts or omissions; and no Trustee may claim any
lien or charge on any Trust Property as a result of any amount due pursuant to
this Section 8.6; and
(d) the provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
Section 8.7. Property Trustee Required; Eligibility of Trustees. (a)
--------------------------------------------------
There shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall be either (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests. If the Property Trustee has or shall
---------------------
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
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Section 8.9. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
Subject to Sections 8.9(b) and 8.9(c), any Trustee (the "Relevant Trustee") may
be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written instrument
executed by the Depositor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
majority in Liquidation Preference of the Common Securities voting as a
class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as a Property Trustee under Section 8.7 (a "Successor Property Trustee")
has been appointed and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust, the Depositor and
the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as Delaware Trustee under Section 8.7 (a "Successor Delaware Trustee")
has been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Depositor and
the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until his, her or its
successor shall have been appointed or until his, her or its death, removal,
resignation, dissolution or liquidation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Depositor 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:
(1) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property
64
Trustee and delivered to the Trust, the Sponsor and the resigning
Property Trustee; or
(2) 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 Trust, the Depositor and
the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts
promptly to appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 8.9
within 60 days after delivery pursuant to this Section 8.9 of an instrument of
resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may, at the expense of the Depositor, petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. 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.
(g) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(h) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
65
(i) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or the Delaware Trustee, as the case may be, set
forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall survive any
Trustee's resignation or removal.
Section 8.10. Acceptance of Appointment by Successor. In case of the
--------------------------------------
appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee shall execute and
deliver an amendment hereto wherein each successor Relevant Trustee shall accept
such appointment and which shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee and upon the execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor RelevantTrustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder.
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Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.11. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.12. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
Section 8.13. Reports by Property Trustee. (a) To the extent required by
---------------------------
the Trust Indenture Act, within 60 days after July 15 of each year commencing
with July 15, 1999, the Property Trustee shall transmit to all Securityholders
in accordance with Section 10.8 and to the Depositor, a brief report dated as of
such July 15 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period
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since the Closing Date) ending with such December 31 or, if the Property
Trustee has not complied in any material respects with such obligations, a
description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange or self
regulatory organization of which the Property Trustee has received notice by the
Trust upon which the Trust Securities are listed and also with the Commission.
The Trust will promptly notify the Property Trustee whenever the Preferred
Securities are listed on any stock exchange or self regulatory organization or
any delisting thereof.
Section 8.14. Reports to the Property Trustee. The Depositor and the
-------------------------------
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Section 8.15. Evidence of Compliance with Conditions Precedent. Each of
------------------------------------------------
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
Section 8.16. Number of Trustees. (a) The number of Trustees shall be
------------------
five, provided that the Holder of all of the Common Securities by written
instrument
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may increase or decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.16(a), or if the
number of Trustees is increased pursuant to Section 8.16(a), a vacancy shall
occur.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.9, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
Section 8.17. Delegation of Power. (a) Any Administrative Trustee may,
-------------------
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereof filed with the Commission, or making any other
governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 8.18. Appointment of Administrative Trustees.
--------------------------------------
(a) The Administrative Trustees shall initially be Xxxx X. Xxxxx, an
individual, Xxxxxxx X. Xxxxx, an individual, and Xxxxxx X. Xxxxx, an individual,
and their successors shall be appointed by the Holders of a majority in
Liquidation Preference of the Common Securities and may resign or be removed by
the Holders of a majority in Liquidation Preference of the Common Securities at
any time. Upon any resignation or removal, the Depositor shall appoint a
successor Administrative Trustee. If at any time there is no Administrative
Trustee, the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may
69
petition any court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.18, the Administrative Trustees in
office, regardless of their number (and not withstanding any other provision of
this Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Holders of a majority in Liquidation Preference
the Common Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the unanimous act of the
remaining Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Depositor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor being a Person
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.7).
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination upon Expiration Date. Unless earlier
--------------------------------
terminated, the Trust shall automatically terminate on August 5, 2038 (the
"Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
Section 9.2. Early Termination. The first to occur of any of the
-----------------
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax Event
following which the Depositor has elected to (i) pay any Additional Sums (in
accordance with Section 4.4) such that the net amount received by Holders of
Preferred Securities in respect of Distributions is not reduced as a result of
such Tax Event and the Depositor has not revoked any such election or failed to
make such payments or (ii) redeem all or some of the Debentures pursuant to
Section 4.4(a);
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(c) the redemption, conversion or exchange of all of the Trust Securities;
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the Depositor at
any time (which notice is optional and wholly within the discretion of the
Depositor) of its intention to dissolve the Trust and distribute the Debentures
in exchange for the Preferred Securities.
Section 9.3. Termination. The respective obligations and
-----------
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of all expenses
owed by the Trust; (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (d) the filing
by any Administrative Trustee (each of whom is hereby authorized) of a
certificate of cancellation with respect to the Trust.
Section 9.4. Liquidation. (a) If an Early Termination Event specified
-----------
in clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the Expiration
Date, the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law (including,
without limitation, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of the
Delaware Business Trust Act), to each Securityholder an aggregate principal
amount of Debentures equal to the aggregate Liquidation Preference of Trust
Securities held by such Holder, subject to Section 9.4(d). Notice of
liquidation shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address as it appears
in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
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(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Preference of Preferred Securities held by such
Holder; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or, if
Section 9.4(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
the Clearing Agency or its nominee, as the record holder of such Trust
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
Trust Securities Certificates not held by the Clearing Agency will be deemed to
represent an aggregate principal amount of Debentures equal to the aggregate
Liquidation Preference of Preferred Securities held by such Holders, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Trust Securities until such certificates are presented to
the Property Trustee for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practicable, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for
72
distribution to Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law (including, without limitation, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Delaware Business Trust Act), an
amount equal to the Liquidation Preference per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding-up or
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Preferences). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
---------------------------------------------------------
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
---------
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Property Trustee, the
Delaware Trustee or the Holders of the Preferred Securities, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor
--------
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity, possessing the
same powers and duties as the Property Trustee, as the holder of the Debentures,
(iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement,
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conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect, (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder's interest in the
new entity), (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor such successor
entity will be required to register as an "investment company" under the 1940
Act, and (c) following such merger, consolidation, amalgamation, replacement,
the Trust or such successor entity will be treated as a grantor trust for United
States federal income tax purposes and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
aggregate Liquidation Preference of the Preferred Securities, consolidate,
amalgamate, merge with or into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or the successor entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders. The death or
---------------------------------------
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such person or any Securityholder for such
person to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 10.2. Amendment. (a) This Trust Agreement may be amended from
---------
time to time by the Trustees and the Depositor, without the consent of any
74
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States federal income tax purposes as a grantor
trust at all times that any Trust Securities are Outstanding or to ensure that
the Trust will not be required to register as an "investment company" under the
1940 Act, or be classified as other than a grantor trust for United States
federal income tax purposes, or (iii) to maintain the qualification of this
Trust Agreement under the Trust Indenture Act; provided, however, that in the
-------- -------
case of clause (i), such action shall not adversely affect in any material
respect the interests of any Securityholder, and any amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Holders representing not less than a majority (based upon Liquidation
Preferences) of the Trust Securities then Outstanding, acting as a single class,
and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trustee's status as a grantor
trust for United States federal income tax purposes or the Trust's exemption
from the status of an "investment company" under the 1940 Act, provided,
--------
however, if any amendment or proposal that would adversely affect the powers,
-------
preferences or special rights of the Trust Securities, whether by way of
amendment or otherwise, would adversely affect only the Preferred Securities or
only the Common Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of a majority in Liquidation Preference of
such class of Trust Securities.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous
75
consent of the Securityholders (such consent being obtained in accordance with
Section 6.3 or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be
amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
the status of an "investment company" under the 1940 Act or be classified as
other than a grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
Section 10.3. Separability. In case any provision in this Trust
------------
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.4. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT
TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561 OF TITLE 12
THEREOF.
Section 10.5. Payments Due on Non-Business Day. If the date fixed for any
--------------------------------
payment on any Trust Security shall be a day which is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day
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which is a Business Day (except as otherwise provided in Section 4.1(a) and
Section 4.2(d)), with the same force and effect as though made on the date fixed
for such payment, and no interest shall accrue thereon for the period after such
date.
Section 10.6. Successors. This Trust Agreement shall be binding upon and
----------
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article 8 of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.7. Headings. The Article and Section headings are for
--------
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands. Any report, notice, demand or
----------------------------
other communications which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities,
to United Rentals Holdings, Inc., Four Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Chief Financial Officer .
Any notice to Preferred Securityholders shall also be given to such Owners
as have, within two years preceding the giving of such notice, filed their names
and addresses with the Property Trustee for that purpose. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given, or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee, to The Bank of New
York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Trustee Administration, (b) with respect to the Delaware Trustee, to The Bank of
New York (Delaware), Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention:
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Corporate Trust Department, with a copy of any such notice to the Property
Trustee at its address above, and (c) with respect to the Administrative
Trustees, to them at the address for notices to the Depositor, marked
"Attention: Secretary". Such notice, demand or other communication to or upon
the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section 10.9. Agreement Not to Petition. Each of the Trustees and the
-------------------------
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act. (a)
------------------------------------------------------
This Trust Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or to be excluded, as the case may be.
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(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
-----------------------------------------------------
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
---------
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS TO THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
Section 10.12. Counterparts. This Trust Agreement may contain more than
------------
one counterpart of the signature page and this Trust Agreement may be executed
by the affixing of the signature of 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.
ARTICLE 11
REGISTRATION RIGHTS
Section 11.1. Registration Rights. The Holders of the Preferred
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Securities, the Debentures and the Guarantee and the shares of Common Stock of
the Depositor issuable upon conversion of the Debentures and/or the Preferred
Securities are entitled to the benefits of the Registration Rights Agreement.
79
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed as of the day and year first above
written.
UNITED RENTALS HOLDINGS, INC.,
as Depositor
By:
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Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
----------------------------------
Name:
Title:
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as Administrative Trustee
--------------------------------------
as Administrative Trustee
--------------------------------------
as Administrative Trustee
80
EXHIBIT A
CERTIFICATE OF TRUST
OF
UNITED RENTALS TRUST I
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
__________ 185,567
Certificate Evidencing Common Securities
of
United Rentals Trust I
6 1/2% Convertible Common Securities
(Liquidation Preference $50 per Common Security)
United Rentals Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that United Rentals
Holdings, Inc. (the "Holder") is the registered owner of 185,567 common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). In accordance with Section 5.10
of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of August 5, 1998 as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Holder is entitled to the benefits of the
Common Securities Guarantee Agreement entered into by the Holder and The Bank of
New York, as Guarantee Trustee, dated as of August 5, 1998 (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
B-1
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 5th day of August 1998.
UNITED RENTALS TRUST I
By:
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Name:
As Administrative Trustee
B-2
EXHIBIT C
[ADD ANY SECURITIES ACT LEGENDS REQUIRED UNDER SECTION 5.15 TO THE ACTUAL
GLOBAL CERTIFICATES.
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT - THIS
PREFERRED SECURITY IS A BOOK- ENTRY PREFERRED SECURITIES CERTIFICATE WITHIN THE
MEANING OF THE TRUST AGREEMENT 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 TRUST AGREEMENT 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 WATER STREET, NEW YORK) TO UNITED RENTALS TRUST I 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. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
C-1
Certificate Number Number of Preferred Securities
__________ 6,000,000
CUSIP No. 00000X000
$300,000,000
Certificate Evidencing Preferred Securities
of
United Rentals Trust I
6 1/2% Convertible Quarterly Income Preferred Securities
Convertible QUIPS/SM*/ Securities
(Liquidation Preference $50 per Preferred Security)
United Rentals Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that __________________
(the "Holder") is the registered owner of 6,000,000 preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the United Rentals Trust I 6 1/2% Convertible Quarterly Income
Preferred Securities (Liquidation Preference $50 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 as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the 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 August 5, 1998 as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by United Rentals
Holdings, Inc., a Delaware corporation, and The Bank of New York, as Guarantee
Trustee, dated as of August 5, 1998 (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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/*/ QUIPS is a service xxxx of Xxxxxxx, Xxxxx & Co.
C-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate.
UNITED RENTALS TRUST I
By:
------------------------------------
Name:
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Trust Agreement.
Dated: August 5, 1998
The Bank of New York,
as Property Trustee
By:
------------------------------------
Authorized Signatory
C-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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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: ____________________
(Sign exactly as our name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee: ______________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial Liquidation Preference of this Global Certificate shall be
$__________. The following increases or decreases in the Liquidation Preference
of this Global Certificate have been made:
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Amount of
increase in
Liquidation Amount of Liquidation
Preference of decrease in Preference of Signature of
this Global Liquidation this Global authorized
Certificate Preference Certificate Signatory of
including upon of following such Trustee of
exercise of over this Global decrease or Securities
Date Made allotment option Certificate increase Custodian
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Schedule A-1
Exhibit D -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 5.4(b) of the Trust Agreement)
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Property Trustee
Attention: Corporate Trust Trustee Administration
Re: 6 1/2% Convertible Quarterly Income Preferred Securities
of United Rentals Trust I (the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as of
August 5, 1998 (the "Trust Agreement"), among United Rentals Holdings, Inc. (the
"Company"), The Bank of New York, The Bank of New York (Delaware) and the
Administrative Trustees named therein. Terms used herein and defined in the
Trust Agreement or in Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to _________ shares of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s). ________________________
CERTIFICATE No(s). __________________
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Certificate,
they are held through the Clearing Agency or participant in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Certificate, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
D-1
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken reasonable
steps to ensure that the Transferee is aware that the Owner may be relying on
Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least one year
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Trust or from an affiliate of
the Trust, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale, and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least two years
has elapsed since the Specified Securities were last acquired from the Trust
or from an affiliate of the Trust, whichever is later, and the Owner is not,
and during the preceding three months has not been, an affiliate of the Trust.
D-2
This certificate and the statements contained herein are made for your
benefit and benefit of the Trust and the Purchasers.
Dated:___________________________
(Print the name of the Undersigned, as such term is defined in the second
paragraph of this certificate.)
By:__________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title
of the person signing on behalf of the Undersigned must be stated.)
D-3
EXHIBIT E -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 5.4(c))
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Property Trustee
Attention: Corporate Trust Trustee Administration
Re: 6 1/2% Convertible Quarterly Income Preferred Securities
of United Rentals Trust I (the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as of
August 5, 1998 (the "Trust Agreement"), among United Rentals Holdings, Inc. (the
"Company"), The Bank of New York, The Bank of New York (Delaware) and the
Administrative Trustees named therein. Terms used herein and defined in the
Trust Agreement or in Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to ________________ shares of Securities, which
are evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s). ____________________________
CERTIFICATE No(s). ______________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Certificate,
they are held through the Clearing Agency or participant in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Certificate, they are registered in the name of the
Undersigned as or on behalf of the Owner.
E-1
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 5.4(c) of the
Trust Agreement. In connection with such exchange, the Owner hereby certifies
that the exchange is occurring after a holding period of at least one year
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Trust or from an affiliate of
the Trust, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Trust. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Trust and the Purchasers.
Dated:___________________________________
(Print the name of the Undersigned, as such term is defined in the second
paragraph of this certificate.)
By:____________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title
of the person signing on behalf of the Undersigned must be stated.)
E-2
Exhibit F
NOTICE OF CONVERSION
To: The Bank of New York
as Property Trustee of
United Rentals Trust I
The undersigned owner of these Trust Securities hereby irrevocably
exercises the option to convert these Trust Securities, or the portion below
designated, into Common Stock of UNITED RENTALS HOLDINGS, INC. (the "United
Rentals Common Stock") in accordance with the terms of the Amended and Restated
Trust Agreement (the "Trust Agreement"), dated as August 5, 1998, by United
Rentals Holdings, Inc., as Depositor, The Bank of New York, as Property Trustee,
The Bank of New York (Delaware), as Delaware Trustee and the Administrative
Trustees named therein and by the Holders, from time to time of individual
beneficial interests in the Trust to be issued pursuant to the Trust Agreement.
Pursuant to the aforementioned exercise of the option to convert these Trust
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in the Trust Agreement) to (i) exchange such Trust Securities for a
portion of the Debentures (as that term is defined in the Trust Agreement) held
by the Trust (at the rate of exchange specified in the terms of the Trust
Securities set forth in the Trust Agreement) and (ii) immediately convert such
Debentures on behalf of the undersigned, into United Rentals Common Stock (at
the conversion rate specified in the terms of the Trust Securities set forth in
the Trust Agreement).
The undersigned does also hereby direct the Conversion Agent that the
shares 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 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.
Any holder of Preferred Securities, upon the exercise of its conversion
rights in accordance with the terms of the Trust Agreement and the Preferred
Securities,
F-1
agrees to be bound by the terms of the Registration Rights Agreement relating to
the United Rentals Common Stock issuable upon conversion of the Preferred
Securities.
Date: ____________, ____
in whole __ in part __
Number and type of Trust 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 United Rentals Common Stock are to be issued,
along with the address or addresses of such person or
persons
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Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code,
and Social Security or Other Identifying Number
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Signature Guarantee:*
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* (Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.)
F-2
SCHEDULE A
The initial Liquidation Preference of this Global Certificate shall be
$__________. The following increases or decreases in the Liquidation Preference
of this Global Certificate have been made:
==========================================================================
Amount of
increase in
Liquidation Liquidation
Preference of Amount of Preference of
this decrease in this Signature of
Global Liquidation Global authorized
Certificate Preference Certificate Signatory of
including upon of following such Trustee of
exercise of over this Global decrease or Securities
Date Made allotment option Certificate increase Custodian
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Schedule A-1