AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
U. S. BANCORP, AS DEPOSITOR
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC.,
AS DELAWARE TRUSTEE,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
AND
THE SEVERAL HOLDERS OF TRUST SECURITIES
DATED AS OF DECEMBER 24, 1996
U. S. BANCORP CAPITAL I
U. S. BANCORP CAPITAL I
Certain Sections of this Trust Agreement,
which by agreement relate to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
310 (a)(1)...................................................................... 8.7
(a)(2)...................................................................... 8.7
(a)(3)...................................................................... 8.9
(a)(4)...................................................................... 2.7(a)(ii)(E)
(b)......................................................................... 8.8
311 (a)......................................................................... 8.13
(b)......................................................................... 8.13
312 (a)......................................................................... 5.7
(b)......................................................................... 5.7
(c)......................................................................... 5.7
313 (a)......................................................................... 8.14(a)
(a)(4)...................................................................... 8.14(b)
(b)......................................................................... 8.14(b)
(c)......................................................................... 10.8
(d)......................................................................... 8.14(c)
314 (a)......................................................................... 8.15
(b)......................................................................... Not Applicable
(c)(1)...................................................................... 8.16
(c)(2)...................................................................... 8.16
(c)(3)...................................................................... Not Applicable
(d)......................................................................... Not Applicable
(e)......................................................................... 1.1, 8.16
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
316 (a)......................................................................... Not Applicable
(a)(1)(A)................................................................... Not Applicable
(a)(10(B)................................................................... Not Applicable
(a)(2)...................................................................... Not Applicable
(b)......................................................................... 5.14
(c)......................................................................... 6.7
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317 (a)(1)...................................................................... Not Applicable
(a)(2)...................................................................... Not Applicable
(b)......................................................................... 5.9
318 (a)......................................................................... 10.10
----------
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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TABLE OF CONTENTS
PAGE
ARTICLE I
INTERPRETATION AND DEFINED TERMS
1.1 Interpretation................................................................................... 2
1.2 Certain Definitions.............................................................................. 2
ARTICLE II
ESTABLISHMENT OF THE TRUST
2.1 Name............................................................................................. 12
2.2 Office of the Delaware Trustee, Principal Place of Business...................................... 12
2.3 Initial Contribution of Trust Property, Organizational Expenses.................................. 12
2.4 Issuance of the Capital Securities............................................................... 12
2.5 Issuance of the Common Securities; Subscription and Purchase of
Debentures....................................................................................... 13
2.6 Declaration of Trust............................................................................. 13
2.7 Authorization to Enter into Certain Transactions................................................. 13
2.8 Assets of Trust.................................................................................. 17
2.9 Title to Trust Property.......................................................................... 17
ARTICLE III
PAYMENT ACCOUNT
3.1 Payment Account.................................................................................. 17
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
4.1 Distributions.................................................................................... 18
4.2 Redemption....................................................................................... 19
4.3 Subordination of Common Securities............................................................... 21
4.4 Payment Procedures............................................................................... 21
4.5 Tax Returns and Reports.......................................................................... 22
4.6 Payment of Taxes, Duties, etc. of the Trust...................................................... 22
4.7 Payments under Indenture......................................................................... 22
4.8 Liability of the Holder of Common Securities..................................................... 22
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ARTICLE V
TRUST SECURITIES CERTIFICATES
5.1 Initial Ownership................................................................................ 22
5.2 The Trust Securities Certificates................................................................ 23
5.3 Execution and Delivery of Trust Securities Certificates.......................................... 23
5.4 Registration of Transfer and Exchange of Capital Securities Certificates......................... 23
5.5 Mutilated, Destroyed, Lost, or Stolen Trust Securities Certificates.............................. 26
5.6 Persons Deemed Securityholders................................................................... 26
5.7 Access to List of Securityholders' Names and Addresses........................................... 27
5.8 Maintenance of Office or Agency.................................................................. 27
5.9 Appointment of Paying Agent...................................................................... 27
5.10 Ownership of Common Securities by Depositor...................................................... 28
5.11 Book-Entry Capital Securities Certificates; Common Securities
Certificate...................................................................................... 28
5.12 Notices to Clearing Agency....................................................................... 29
5.13 Definitive Capital Securities Certificates....................................................... 29
5.14 Rights of Securityholders........................................................................ 30
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.2 Notice of Meetings............................................................................... 33
6.3 Meetings of Holders of Capital Securities........................................................ 33
6.4 Voting Rights.................................................................................... 33
6.5 Proxies, Etc..................................................................................... 33
6.6 Securityholder Action by Written Consent......................................................... 34
6.7 Record Date for Voting and Other Purposes........................................................ 34
6.8 Acts of Securityholders.......................................................................... 34
6.9 Inspection of Records............................................................................ 35
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Property Trustee and the Delaware
Trustee.......................................................................................... 36
7.2 Representations and Warranties of Depositor...................................................... 37
ARTICLE VIII
THE TRUSTEES
8.1 Certain Duties and Responsibilities.............................................................. 37
8.2 Certain Notices.................................................................................. 39
8.3 Certain Rights of Property Trustee............................................................... 39
8.4 Not Responsible for Recitals or Issuance of Securities........................................... 41
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8.5 May Hold Securities.............................................................................. 41
8.6 Compensation; Indemnity; Fees.................................................................... 41
8.7 Corporate Property Trustee Required; Eligibility of Trustees..................................... 42
8.8 Conflicting Interests............................................................................ 43
8.9 Co-Trustees and Separate Trustee................................................................. 43
8.10 Resignation and Removal, Appointment of Successor................................................ 45
8.11 Acceptance of Appointment by Successor........................................................... 46
8.12 Merger, Conversion, Consolidation or Succession to Business...................................... 47
8.13 Preferential Collection of Claims Against Depositor or Trust..................................... 47
8.14 Report by Property Trustee....................................................................... 48
8.15 Reports to the Property Trustee.................................................................. 48
8.16 Evidence of Compliance with Conditions Precedent................................................. 48
8.17 Number of Trustees............................................................................... 49
8.18 Delegation of Power.............................................................................. 49
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
9.1 Termination Upon Expiration Date................................................................. 50
9.2 Early Termination................................................................................ 50
9.3 Termination...................................................................................... 50
9.4 Liquidation...................................................................................... 50
9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust.............................. 52
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Limitation of Rights of Securityholders.......................................................... 53
10.2 Amendment........................................................................................ 53
10.3 Separability..................................................................................... 54
10.4 Governing Law.................................................................................... 55
10.5 Payments Due on NonBusiness Day.................................................................. 55
10.6 Successors....................................................................................... 55
10.7 Headings......................................................................................... 55
10.8 Reports, Notices and Demands..................................................................... 55
10.9 Agreement Not to Petition........................................................................ 56
10.10 Application of Trust Indenture Act............................................................... 56
10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture.................................. 57
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 24,
1996, among (i) U. S. Bancorp, an Oregon corporation (including any successors
or assigns, the "Depositor"), (ii) The First National Bank of Chicago, a
national banking association duly organized and existing under the laws of the
United States, as property trustee, (in such capacity, the "Property Trustee"
and, in its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) First Chicago Delaware Inc., a Delaware corporation,
as Delaware trustee (the "Delaware Trustee"), (iv) Xxxxxxx X. Xxxxxx, an
individual, and Xxxxxxx X. Xxxxx, an individual, each of whose address is c/o U.
S. Bancorp, 000 X.X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000 (each an
"Administrative Trustee" and collectively, the "Administrative Trustees") (the
Property Trustee, Delaware Trustee, and the Administrative Trustees referred to
collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee, and the Administrative
Trustees have heretofore duly declared and established a statutory business
trust pursuant to the Delaware Business Trust Act by entering into that certain
Declaration of Trust, dated as of December 18, 1996 (the "Original Trust
Agreement"), and by the filing with the Secretary of State of the State of
Delaware of the Certificate of Trust, on December 19, 1996, attached as Exhibit
A; 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 of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust
pursuant to the Purchase Agreement, and (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 parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I
INTERPRETATION AND DEFINED TERMS
SECTION 1.1 Interpretation.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein," "hereof' and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
SECTION 1.2 Certain Definitions.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid
by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 10.5 of the
Indenture.
"Administrative Trustees" means each of Xxxxxxx X. Xxxxxx and Xxxxxxx
X. Xxxxx, solely in such Person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Trust shall not
be deemed an Affiliate of the Depositor. 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,
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whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Book-Entry Capital Securities" means a beneficial interest in a Global
Capital Securities Certificate, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Corporate Trust Office of the Debenture Trustee is closed for business.
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"Capital Security" means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $1,000 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions payable at the annual rate of 8.27% of the stated
Liquidation Amount of $1,000, payable semi-annually, and a Liquidation
Distribution as provided herein. The Capital Securities shall consist of the
Original Capital Securities and, if issued, the New Capital Securities.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
C.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company ("DTC"), as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to 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.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit D.
"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
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
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60670-0126, Attention: Corporate Trust Services Division, except if the Place of
Payment (as defined in the Indenture) of the Capital Securities is New York
City, then for purposes of Section 5.8, such term shall mean the office or
agency of the Trustee in the Borough of Manhattan, The City of New York, which
office at the date hereof is located at First Chicago Trust Company of New York,
00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a
national banking association, and any successor thereto.
"Debentures" means the $309,280,000 aggregate principal amount of the
Depositor's 8.27% Junior Subordinated Deferrable Interest Debentures due
December 15, 2026, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as
the context requires) of (a) Capital Securities Certificates issued as
Book-Entry Capital Securities as provided in Section 5.11(a) and (b) Capital
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distributions" means amounts payable in respect of Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of
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law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or breach of which is dealt with in clause (b) or
(c) above), and continuation of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25
percent in aggregate Liquidation Amount of the Outstanding Capital
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit E, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital Securities
Certificate that is registered in the Security Register in the name of a
Clearing Agency or a nominee thereof.
"Global Rule 144A Capital Securities Certificate" has the meaning
specified in Section 5.2.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The First National Bank of Chicago, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Capital Securities, as amended or supplemented from time to time.
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"Indenture" means the Junior Subordinated Indenture, dated as of the
date hereof, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Initial Purchasers" means Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers Inc.
and Salomon Brothers Inc.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, allocated to the Common Securities and to the
Capital Securities based upon the relative Liquidation Amounts of such classes,
and (b) with respect to a distribution of Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"New Capital Securities" has the meaning specified in Section 2.4.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 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 or condition and the definitions
relating thereto;
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(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Capital Securities" has the meaning specified in Section 2.4.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement;
and
(c) Trust Securities which have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Capital Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Capital Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon such
request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that such Trustee knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time
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when all of the outstanding Capital Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate.
Capital Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Capital Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Property Trustee" means the commercial bank identified as the
"Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust 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 December
17, 1996, among the Trust, the Depositor, and the several Initial Purchasers.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the Stated Maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
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"Registration Default" means if (i) either the Depositor or the Trust
fails to comply with the terms of the Registration Rights Agreement or (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement (each
as defined in the Registration Rights Agreement) fails to become effective
within the time period described in the Registration Rights Agreement.
"Registration Default Distributions" has the meaning specified in
Section 2(c) of the Registration Rights Agreement.
"Registration Default Interest" has the meaning specified in Section
2(c) of the Registration Rights Agreement.
"Registration Rights Agreement" means the agreement dated as of
December 24, 1996, among the Depositor, the Trust, and the Initial Purchasers of
the Capital Securities, providing for the registration of an offer to exchange
Capital Securities, Debentures and the Guarantee for capital securities,
debentures, and a guarantee which will have substantially the same terms as the
original securities but have been registered under the Securities Act and
qualified under the Trust Indenture Act.
"Regulation S" means Regulation S under the Securities Act.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Capital Securities" means the Capital Securities sold by the
Initial Purchasers in reliance on Rule 144A.
"Rule 144A Capital Securities Legend" means a legend substantially in
the form of the legend required in Exhibit F to be placed upon the Rule 144A
Capital Securities.
"Rule 144A Securities Certificate" means a certificate substantially in
the form set forth in Exhibit G.
"Securities Act" means the United States Securities Act of 1933.
"Securities Act Legend" means a Rule 144 Capital Securities Legend or
another appropriate legend under the Securities Act.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4(a).
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however,
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that in determining whether the Holders of the requisite amount of Capital
Securities have voted on any matter provided for in this Trust Agreement, then
for the purpose of any such determination, so long as Definitive Capital
Securities Certificates have not been issued, the term Securityholders or
Holders as used herein shall refer to the Owners.
"Stated Maturity," when used with respect to the Debentures, has the
meaning specified in Section 1.1 of the Indenture.
"Successor Capital Security" of any particular Capital Security means
every Capital Security issued after, and evidencing all or a portion of the same
beneficial interest in the Trust as that evidenced by, such particular Capital
Security; and, for the purposes of this definition, any Capital Security
executed and delivered under Section 5.5 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Capital Security shall be deemed to
evidence the same beneficial interest as the mutilated, destroyed, lost or
stolen Capital Security.
"Trust" means the Delaware business trust heretofore created, and
continued hereby, and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto, and (ii) for
all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the
Property Trustee under the Guarantee, (c) the rights of the Trust under the
Expense Agreement, (d) any cash on deposit in, or owing to, the Payment Account,
and (e) all proceeds and rights in respect of the foregoing, and any other
property and assets for the time being held or deemed to be held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
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"Unrestricted Securities Certificate" means a certificate substantially
in the form set forth in Exhibit H.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.1 Name.
The Trust continued hereby shall be known as "U. S. Bancorp Capital 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 First
Chicago Delaware Inc., 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o U. S.
Bancorp, 000 X.X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000.
SECTION 2.3 Initial Contribution of Trust Property, Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4 Issuance of the Capital Securities.
On December 17, 1996, Depositor, on behalf of the Trust and pursuant to
the Original Trust Agreement, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Initial Purchasers named in the Purchase
Agreement Capital Securities Certificates, registered in the name of the nominee
of the initial Clearing Agency, representing 300,000 Capital Securities, having
an aggregate Liquidation Amount of $300,000,000, against receipt of the
aggregate purchase price of such Capital Securities of $300,000,000 by the
Property Trustee (the "Original Capital Securities"). The Original Capital
Securities shall consist of Rule 144A Capital Securities.
In addition, the Administrative Trustees, on behalf of the Trust, may
execute Capital Securities Certificates in accordance with Section 5.2
representing an additional class of Capital
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Securities to be issued only in exchange for all or part of the Original Capital
Securities pursuant to the exchange offer contemplated by the Registration
Rights Agreement ("New Capital Securities"); provided, that the aggregate number
of issued and outstanding Capital Securities shall not at any time exceed
300,000, less the number of Capital Securities redeemed pursuant to Section 4.2.
SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, representing 9,280 Common
Securities having an aggregate Liquidation Amount of $9,280,000 against payment
by the Depositor of such amount to the Property Trustee. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Debentures, registered in the name of the
Property Trustee and having an aggregate principal amount of $309,280,000, 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 $309,280,000.
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, and (b) to engage in those activities necessary or incidental
thereto. 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 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, the Administrative Trustees or the
Trustees generally 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
paragraph (b) of this section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
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(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) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement, the Certificate Depository Agreement, the Registration
Rights Agreement, and such other agreements as may be necessary
or desirable in connection with the purposes and function of the
Trust;
(C) assisting in compliance with the Registration
Rights Agreement, including compliance with the Securities Act
and applicable state securities or blue sky laws, and qualifying
all necessary documents under the Trust Indenture Act;
(D) registration of the Capital Securities under the
Exchange Act, if required, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Debentures to the Securityholders in accordance with this
Trust Agreement;
(F) the consent to the appointment of a Paying Agent
and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise determined by the Property
Trustee or the holders of a majority of the Outstanding Capital
Securities or Common Securities, 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 or all of the Administrative Trustees) any documents
that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this Trust
Agreement for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
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(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 Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the Payment
Account;
(D) the distribution 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;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraphs (b), (c), (d), or (e) of the definition of the term if
such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement
and protect and conserve the Trust Property for the benefit of
the Securityholders (without consideration of the effect of any
such action on any particular Securityholder); and
(J) except as otherwise provided in 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).
(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 Trustees acting on behalf of
the Trust shall not (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property
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or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to be
classified as an association taxable as a corporation or as other than
a grantor trust for United States federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt or
(v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Property Trustee shall defend
all claims and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Capital
Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust, the
following (and any actions by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified
and confirmed in all respects):
(i) the preparation by the Trust of an offering
circular, including any amendment thereto, in relation to the
Original Capital Securities;
(ii) the compliance by the Trust with the
Registration Rights Agreement, including the preparation and
filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration statement or statements on
the appropriate form, including any amendments thereto;
(iii) the determination of the states in which to
take appropriate action to qualify or register for sale all or
part of the Capital Securities and the determination of any and
all such acts, other than actions which must be taken by or on
behalf of the Trust, and the advice to the Trustees of actions
they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by
the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable
laws of any such states;
(iv) if the Depositor shall desire, the preparation
for filing by the Trust and execution on behalf of the Trust of
an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for
listing, upon notice of issuance, of any Capital Securities; and
the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Capital
Securities, if any, under Section 12(b) or 12(g) of the Exchange
Act, including any amendments thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Purchase Agreement providing for
the sale of the Capital Securities; and
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(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees and the Property Trustee are authorized and
directed to conduct the affairs of the Trust and to operate the Trust
so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act, as amended, or be
classified as an association taxable as a corporation or as other than
a grantor trust for United States federal income tax purposes and so
that the Debentures will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, a
majority in aggregate Liquidation Amount of the outstanding Common
Securities and the Property Trustee are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that they determine in their discretion to be
necessary or desirable for such purposes, as long as such action does
not adversely affect in any material respect the interests of the
Holders of the Capital Securities.
SECTION 2.8 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures.
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(c) Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1 Distributions.
(a) The Trust Securities represent preferred undivided beneficial
interests in the Trust Property, and Distributions (including any Additional
Amounts) will be made on Trust Securities at the rate and on the dates that
payments of interest (including Additional Interest) are made on the Debentures.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from the date of original issuance 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
semi-annually in arrears on June 15 and December 15 of each year,
commencing on June 15, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then
the payment of such Distribution shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in
the next calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of 8.27% per annum of the Liquidation Amount of the Trust
Securities. Notwithstanding the foregoing, in the event of a
Registration Default, which shall be promptly notified to the Trustees
by the Depositor in an Officers' Certificate, Registration Default
Distributions shall be payable on the Trust Securities in the amount
and on the terms provided in the Registration Rights Agreement,
assuming that Registration Default Interest payments are made when due.
Distributions payable for each full Distribution period shall be
computed by dividing the rate per annum by two. The amount of
Distributions for any partial period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual days elapsed in a
partial month in such period. The amount of Distributions payable for
any period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent
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that the Trust has funds then on hand and available in the Payment
Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date for
such Distribution which shall be the June 1 or December 1, as the case may be,
next preceding the relevant Distribution Date.
SECTION 4.2 Redemption.
(a) On each Debenture Redemption Date and on the Stated Maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price in respect
to each such Trust Security to be redeemed will become due and payable
and that Distributions thereon will cease to accumulate on and after
said date.
The Trust in issuing the Trust Securities may use "CUSIP" or "private placement"
numbers (if then generally in use), and, if so, the Property Trustee shall
indicate the "CUSIP" or "private placement" numbers of the Trust Securities in
notices of redemption and related materials as a convenience to Securityholders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Trust Securities or as
contained in any notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect of
any Capital Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Capital Securities, irrevocably deposit with the Clearing
Agency for the Book-Entry Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Capital Securities that are not Book-Entry Capital Securities,
the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Paying Agent funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof upon surrender of their Capital
Securities Certificate. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease with respect to
such Trust Securities, except the right of such Securityholders to receive the
Redemption Price therefor and any Distribution thereon payable on or prior to
the Redemption Date, but without interest, and such Trust Securities will cease
to be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date for the Redemption Date, which
shall be at least fifteen days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata (based on Liquidation Amounts) among the Common Securities and the Capital
Securities. The particular Capital Securities to be redeemed shall be selected
pro rata (based upon Liquidation Amounts) not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Capital Securities
not previously called for redemption, by such method (including, without
limitation, by lot) as the Property Trustee shall deem fair and appropriate (or,
if the Capital Securities are then held in Book-Entry form, in accordance with
DTC's customary procedures) and which may provide for the selection
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for redemption of portions (equal to $1,000 or an integral multiple of $1,000 in
excess thereof) of the Liquidation Amount of Capital Securities of a
denomination larger that $1,000, provided that the Holders of such Capital
Securities may not hold fewer than 100 Capital Securities after the redemption.
The Property Trustee shall promptly notify the Securities Registrar in writing
of the Capital Securities selected for redemption and, in the case of any
Capital Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Securities redeemed or to be
redeemed in part, to the portion redeemed.
SECTION 4.3 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities shall be made,
subject to Section 4.2(f), pro rata among the Common Securities and the Capital
Securities based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date any Event of
Default resulting from a Debenture Event of Default (as a result of any failure
by the Depositor to pay amounts in respect of Debentures when due) shall have
occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common Security, and no
other payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Capital Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Capital
Securities then called for redemption, shall have been made or provided for and
all funds 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, Capital Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until all such Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated. Until any
such Event of Default under this Trust Agreement with respect to the Capital
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not the Holder of the Common Securities, and only the Holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
SECTION 4.4 Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Capital Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Capital Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately
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available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
SECTION 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state, and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder the appropriate Internal Revenue Service form required to
be provided on such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
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 with
respect to the Trust Securities.
SECTION 4.6 Payment of Taxes, Duties, etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.7 Payments under Indenture.
Any amount payable hereunder to any Holder of Capital Securities (and
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has received directly pursuant to
Section 5.8 of the Indenture or Section 5.14 of this Trust Agreement.
SECTION 4.8 Liability of the Holder of Common Securities.
As permitted under the Delaware Business Trust Act, the Holder of the
Common Securities shall be liable for the debts and obligations of the Trust as
set forth in the Expense Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership.
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Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2 The Trust Securities Certificates.
The Capital Securities Certificates shall be issued in fully registered
form in minimum blocks of at least 100 (representing a minimum of $100,000
aggregate Liquidation Amount) and integral multiples of $1,000 in excess
thereof, and the Capital Securities must at all times be held in blocks of at
least 100. The Common Securities Certificate(s) shall be issued in denominations
of $1,000 Liquidation Amount and integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative 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 benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of the Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4,
5.11 and 5.13. Upon their original issuance, Rule 144A Capital Securities will
be evidenced by one or more Global Rule 144A Capital Securities Certificates
which will be deposited with DTC and registered in the name of Cede & Co. as the
nominee of DTC for credit to the respective accounts of the Owners thereof (or
such other accounts as they may direct).
SECTION 5.3 Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates consisting of Original Capital Securities and the Common
Securities in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Trust and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, 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.
SECTION 5.4 Registration of Transfer and Exchange of Capital Securities
Certificates.
(a) The Administrative Trustees shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.8, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Capital Securities Certificates (the "Securities Register") in
which the registrar designated by the Administrative Trustees (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Capital Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers
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and exchanges of Capital Securities Certificates as herein provided. The Bank
shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Capital
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Capital Securities that have been called for redemption. At the option of
a Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Capital Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Administrative Trustees or Securities Registrar in accordance with such
Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
(b) Notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Original Capital Securities of the kinds specified in
this Section 5.4(b) shall be made only in accordance with this Section 5.4(b).
(i) Original Capital Securities Certificates other than Global
Capital Securities Certificates may be transferred, in whole or in
part, to a Person who takes delivery in the form of another Capital
Security that is not a Global Capital Securities Certificate, provided,
that if the Capital Security to be transferred is a Rule 144A Capital
Security, then the Securities Registrar shall have received a Rule 144A
Securities Certificate satisfactory to the Securities Registrar and
duly executed by the transferor Holder or his attorney duly authorized
in writing, in which case the transferee Holder shall take delivery in
the form of a Rule 144A Capital Security.
(ii) Notwithstanding any other provision of this Trust Agreement,
Capital Securities may only be transferred or exchanged in blocks
having an aggregate Liquidation Amount of not less than $100,000. Any
transfer, exchange or other disposition of Capital Securities in
contravention of this Section 5.4(b)(ii) shall be
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deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or Owner of such
Capital Security for any purpose, including but not limited to the
receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
(c) Rule 144A Capital Securities and their respective Successor Capital
Securities shall bear a Rule 144A Capital Securities Legend.
(i) New Capital Securities shall not bear a Securities Act
Legend;
(ii) subject to the following Clauses of this Section 5.4(c), a
Capital Securities Certificate which is exchanged, upon transfer or
otherwise, for a Global Capital Securities Certificate shall bear the
Securities Act Legend borne by such Global Capital Securities
Certificate while represented thereby;
(iii) subject to the following Clauses of this Section 5.4(c), a
new Capital Securities Certificate which is not a Global Capital
Securities Certificate and is issued in exchange for another Capital
Securities Certificate (including a Global Capital Securities
Certificate) upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Capital Security Certificate, provided that,
if such new Capital Securities Certificate is required pursuant to
Section 5.4(b) to be issued in the form of a Rule 144A Capital
Security, it shall bear a Rule 144A Capital Securities Legend;
(iv) any Original Capital Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration contemplated by the
Registration Rights Agreement), together with their Successor Capital
Securities shall not bear a Securities Act Legend; the Depositor or an
Administrative Trustee shall inform the Property Trustee in writing of
the effective date of any such registration statement registering the
Original Capital Securities under the Securities Act and shall notify
the Property Trustee at any time when prospectuses may not be delivered
with respect to Original Capital 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
accordance with the aforementioned registration statement;
(v) at any time after the Original Capital Securities may be
freely transferred without registration under the Securities Act or
without being subject to transfer restrictions imposed thereon by the
Securities Act, a new Capital Securities Certificate which does not
bear a Securities Act Legend may be issued in exchange for or in lieu
of a Capital Securities Certificate (other than a Global Capital
Securities Certificate) or any portion thereof which bears such a
legend if the Securities Registrar has received an Unrestricted
Securities Certificate, satisfactory to the Securities Registrar and
duly executed by the Holder of such legended Capital Securities
Certificate or his attorney duly authorized in writing;
- 25 -
(vi) a new Capital Securities Certificate which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Capital Securities Certificate (other than a Global Capital Securities
Certificate) or any portion thereof which bears such a legend if, in
the judgment of the Administrative Trustees, placing such a legend upon
such new Capital Securities Certificate is not necessary to ensure
compliance with the registration requirements of the Securities Act;
and
(vii) notwithstanding the foregoing provisions of this Section
5.4(c), a Successor Capital Security of a Capital Security that does
not bear a particular form of Securities Act Legend shall not bear such
form of legend unless the Property Trustee has reasonable cause to
believe that such Successor Capital Security is a "restricted security"
within the meaning of Rule 144.
(d) The Property Trustee shall not be required to insure or verify
compliance with securities laws, including the Securities Act, Exchange Act and
1940 Act, in connection with transfers and exchanges of Capital Securities
Certificates.
SECTION 5.5 Mutilated, Destroyed, Lost, or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the 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 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 delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6 Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
- 26 -
SECTION 5.7 Access to List of Securityholders' Names and Addresses.
Each Holder 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 Administrative Trustees or the Property Trustee shall maintain an
office or offices or agency or agencies where Capital Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate the
corporate trust office of the Property Trustee in the Borough of Manhattan, The
City of New York, as the office or agency for such purposes. The Administrative
Trustees or the Property Trustee shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
SECTION 5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The 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 Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to
the Administrative Trustees and the Property Trustee. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Property Trustee shall appoint a successor
that is acceptable to the Administrative Trustees to act as Paying Agent (which
shall be a bank or trust company). The Administrative Trustees shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Property
Trustee to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled hereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
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SECTION 5.10 Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection with a consolidation or merger of
the Depositor into another Person, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, 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 Book-Entry Capital Securities Certificates; Common
Securities Certificate.
(a) The Original Capital Securities, upon original issuance, will be
issued in the form of typewritten Global Capital Securities Certificates
representing Book-Entry Capital Securities, to be delivered to DTC or its
custodian, by, or on behalf of, the Trust. Such Capital Securities Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of DTC, and no Owner will receive a Definitive Capital
Securities Certificate representing such Owner's interest in such Capital
Securities, except as provided in Section 5.13. Unless and until Definitive
Capital Securities Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Securities Registrar and the Trustees shall be entitled
to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Capital Securities Certificates
(including the payment of the Liquidation Amount of and Distributions
on Capital Securities evidenced by Book-Entry Capital Securities and
the giving of instructions or directions to Owners of Capital
Securities evidenced by Book-Entry Capital Securities) as the sole
Holder of Capital Securities evidenced by Book-Entry Capital Securities
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provision of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Capital
Securities shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between
such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Capital Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Capital Securities to such Clearing Agency
Participants.
- 28 -
(b) If any Global Capital Securities Certificate is to be exchanged for
other Capital Securities Certificates or canceled in part, or if another Capital
Securities Certificate is to be exchanged in whole or in part for a beneficial
interest in any Global Capital Securities Certificate, then either (i) such
Global Capital Securities Certificate shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the aggregate Liquidation
Amount represented by such Global Capital Securities Certificate shall be
reduced, subject to Section 5.2, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Global Capital Securities
Certificate to be so exchanged or canceled, or equal to the Liquidation Amount
represented by such other Capital Securities Certificates 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 Securities Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records.
(c) 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 Capital
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13 Definitive Capital Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Capital Securities Certificates or has ceased to be a
Clearing Agency, and the Depositor is unable to locate a qualified successor,
(b) the Depositor at its option advises the Trustees in writing that it elects
to terminate the book-entry system through the Clearing Agency or (c) there
shall have occurred and be continuing an Event of Default, then the
Administrative Trustees shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Capital Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Capital Securities Certificates to Owners of such class requesting
the same. Upon surrender to the Securities Registrar of the typewritten Capital
Securities Certificate or Certificates representing the Global Capital
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Capital Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Capital Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Capital Securities Certificates as
Securityholders. The Definitive Capital Securities Certificates shall be
printed, lithographed or engraved or may
- 29 -
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
SECTION 5.14 Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of the 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 or 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 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.
(b) For so long as any Capital Securities remain Outstanding, if, upon
a Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25 percent in aggregate principal amount of the outstanding Debentures
fail to declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25 percent in Liquidation Amount of the Capital
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest on such Debentures shall remain subordinated to the extent provided in
the Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of at least a majority in aggregate Liquidation Amount of
the Capital Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest as defined in the Indenture) on all of
the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
- 30 -
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee and
the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Book-Entry Capital Securities,
a record date shall be established for determining Holders of Outstanding
Capital Securities entitled to join in such notice, which record date shall be
at the close of business on the day the Property Trustee receives such notice.
The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided that, unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such notice
prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Capital Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and (c), the Holders of Capital
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
- 31 -
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee for the
benefit of the Trust, the Property Trustee shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or execute any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable under
Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a least a majority in Liquidation
Amount of all Outstanding Capital Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Capital Securities.
The Trustees shall not revoke any action previously authorized or approved by a
vote of the Holders of the Capital Securities, except by a subsequent vote of
the Holders of Capital Securities. The Property Trustee shall notify all Holders
of the Capital Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of Holders of
Capital Securities, prior to taking any of the foregoing actions, the Property
Trustee shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that such action shall not cause the
Trust to be classified as an association taxable as a corporation for United
States federal income tax purposes or cause the Trust to fail to be classified
as a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Capital Securities, whether by way of amendment to this Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Capital Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Capital Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Trust to be
classified as an association
- 32 -
taxable as a corporation for United States federal income tax purposes or cause
the Trust to fail to be classified as a grantor trust for United States federal
income tax purposes.
SECTION 6.2 Notice of Meetings.
Notice of all meetings of the Holders of Capital Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each such Holder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3 Meetings of Holders of Capital Securities.
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 Holders of record of at least
25 percent of the Capital Securities (based upon their Liquidation Amount) and
the Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Capital Securities to vote on any
matters as to which such Holders are entitled to vote.
Holders of record of at least 50 percent of the Outstanding Capital
Securities (based upon their Liquidation Amount), 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 present, in person or by proxy, holding more than a majority of the
Capital Securities (based upon their Liquidation Amount) held by the
Securityholders of record 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.
In respect of any matter as to which a Securityholder is entitled to
vote, such Securityholder shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by the Trust Securities held of record by such
Securityholder.
SECTION 6.5 Proxies, Etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the 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
- 33 -
of record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7 Record Date for Voting and Other Purposes.
For the purpose of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8 Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders 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
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such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Capital Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise 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 VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
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 Trustee shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and
does not require any approval of stockholders of the Property Trustee
and the Delaware Trustee and such execution, delivery and performance
will not (i) violate the Charter or By-laws of the Property Trustee or
the Delaware Trustee, (ii) 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 or the State of Delaware, as the case
may be, governing the banking, trust or general powers of the
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Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware;
(h) 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 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 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 each such date, entitled to the
benefits of this Trust Agreement.
ARTICLE VIII
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,
subject to Section 10.10 hereof. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. 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 a Trustee
from liability
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for its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct. To the extent that, at law or in equity, a Trustee
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such Trustee shall not be liable to the Trust
or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the 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 Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust or 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 not less than a majority in
Liquidation Amount 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;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation
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to the Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 8.2 Certain Notices.
Within five Business 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 Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt by the Property Trustee of
notice of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Securityholders and the Administrative Trustees, unless
such exercise shall have been revoked.
SECTION 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions of this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to which the Holders of
Capital Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall take such action as it deems
advisable and in the best interests of the holders of the Trust
Securities, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
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(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 which, 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 see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which counsel
may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this
Trust Agreement, unless such Securityholders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys; provided that the Property Trustee
shall be responsible for its own negligence or recklessness 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 instruction with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request
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instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
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 be taken as the statements of the Depositor and the Trust, and the
Trustees do not assume any responsibility for their correctness. The Trustees
shall not be accountable for the use or application by the Depositor of the
proceeds of the Debentures.
SECTION 8.5 May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, 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 Sections 8.8 and 8.13, 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 to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any
provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel),
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except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(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,
except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to
such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of Holders of, securities or other obligations
of the Depositor or its Affiliates.
SECTION 8.7 Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank, has a combined capital and surplus of at
least $50,000,000, and is eligible pursuant to the Trust Indenture Act to act as
such. 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
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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. At the time of
appointment, the Property Trustee must have securities rated in one of the three
highest rating categories by a nationally-recognized statistical rating
organization.
(b) There shall at all times be one or more 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 either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
SECTION 8.9 Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrative Trustees shall for such purpose join in the execution,
delivery, and performance of all instruments and agreements necessary or proper
to appoint, one or more Persons approved by the Property Trustee either to act
as co-trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to the extent required by law to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request to do
so, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its
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xxxxxxxxx xxxxx xx xxxxxxxx xx xxx Xxxxxx Xxxxxx that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property covered
by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this section, and, in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act
of a co- trustee or separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10 Resignation and Removal, Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time giving written notice thereof to the Securityholders. If
the instrument of acceptance by the successor Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of
a successor Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a majority in aggregate Liquidation
Amount of the Outstanding Capital Securities, at any time, for cause, and if a
Debenture Event of Default has occurred and is continuing with or without cause.
An Administrative Trustee may be removed by the Common Securityholder at any
time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Holders of at least 25% in aggregate Liquidation Amount of
Capital Securities shall have the right to vote to appoint a successor. If a
successor has not been appointed by the Holders of Capital Securities, the
Common Securityholder shall promptly appoint a successor Trustee or Trustees,
and the retiring Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee or the
Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Holders of at least 25% in
aggregate Liquidation Amount of Capital Securities shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor Trustee shall comply
with the applicable requirements of Section 8.11. If an Administrative Trustee
shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
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The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any 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 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 the Administrative Trustees or Delaware Trustee, as the case may be, set
forth in Section 8.7).
SECTION 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees. Upon the execution and delivery of such amendment
the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee will duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the 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.
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SECTION 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13 Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or Trust Property or of such other obligor or their creditors,
the Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Property Trustee shall have made
any demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 8.14 Report by Property Trustee.
(a) Within 60 days after June 15 of each year commencing with June 15,
1997, 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 June 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 since the
Closing Date) ending with such June 15 or, if the Property Trustee has
not complied in any material respect with such obligations, a
description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder
which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to 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 forwarded by the Property Trustee to the Administrative Trustees
for filing with each national stock exchange, the Nasdaq National Market or such
other interdealer quotation system or self-regulatory organization upon which
the Trust Securities are listed or traded, with the Commission and with the
Depositor.
SECTION 8.15 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,
if any, 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 8.16 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 the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by
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an officer pursuant to Section 314(c)(1) or Section 314(e) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.17 Number of Trustees.
(a) The initial number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument 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 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust. 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 8.10, 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 8.18 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 thereto filed with the
Commission, or making any other governmental filing; and
(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 this Trust Agreement, as set forth herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1 Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2052 (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, in its capacity as Holder
of the Common Securities, unless the Depositor shall transfer the
Common Securities as provided by Section 5.10, in which case this
provision shall refer instead to the successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the
Depositor at any time (which direction is optional and wholly within
the discretion of the Depositor) to terminate the Trust and distribute
Debentures to Securityholders in exchange for the Capital Securities;
(c) the redemption of all of the Capital Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court
of competent jurisdiction.
SECTION 9.3 Termination.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation of
the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2, of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (b) the payment of any
expenses owed by the Trust; and (c) the discharge of all administrative duties
of the Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4 Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of
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the Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the 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) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its reasonable efforts to have the Debentures listed on
the New York Stock Exchange or on such other exchange, interdealer quotation
system or self-regulatory organization as the Capital Securities are then
listed, if any (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except the right
of such Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding up or other
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termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, winding up
or termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid pro rata
(based upon Liquidation Amounts). The Holders of the Common Securities will be
entitled to receive Liquidation Distributions upon any such dissolution, winding
up or termination pro rata (determined as aforesaid) with Holders of Capital
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have priority over the Common
Securities.
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Section 9.5.
At the request of the Holder of the Common Securities, without the consent of
the Holders of any of the Capital Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of the Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital Securities rank in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold the Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating organization
which gives ratings on the Capital Securities, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material respect, (v)
such successor entity has a purpose identical to that of the Trust, (vi) prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Depositor has received an Opinion of Counsel to the Trust
experienced in such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity will be required
to register as an investment company under the 1940 Act, (vii) the Depositor or
any permitted successor or assignee owns all of the Common Securities of such
successor entity and
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guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee and (viii) 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 Capital Securities are then listed, if any.
Notwithstanding the foregoing, the Trust shall not except with the consent of
Holders of 100 percent in Liquidation Amount of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other 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 an association taxable as a corporation or as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Securityholders.
The death or incapacity, or the dissolution, liquidation, termination,
or the bankruptcy 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, successors or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Holders of a majority in aggregate Liquidation Amount of the Common Securities
and the Property Trustee, without the consent of the Holders of the Capital
Securities, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will not be classified for United States federal income tax purposes as an
association taxable as a corporation and will be classified as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that the
Trust will not be required to register as an investment company under the 1940
Act; provided, however, that in the case of either clause (i) or clause (ii),
such action shall not adversely affect in any material respect the interests of
any Holder of Capital Securities, 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 Property Trustee and the Holders of a
majority in aggregate Liquidation
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Amount of the Common Securities with (i) the consent of Trust Securityholders
representing not less than a majority (based upon Liquidation Amounts) of the
Outstanding Capital Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's exemption from status of an "investment company"
under the 1940 Act or cause the Trust to be an association taxable as a
corporation for United States federal income tax purposes.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an "investment company" under the 1940 Act or fail or cease to be
classified as a grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be, this Trust Agreement may not be amended in a manner
which imposes any additional obligation or liability on the Depositor, the
Property Trustee or the Delaware Trustee, as the case may be.
(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.
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SECTION 10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST, AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT
OF LAWS PROVISIONS.
SECTION 10.5 Payments Due on NonBusiness Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Section 4.1(a) and 4.2(d)), with the same force and effect
as though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
SECTION 10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor
shall not assign its obligations hereunder (any purported assignment in
contravention of this Section 10.6 being null and void).
SECTION 10.7 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of Capital Securities, to such Holder as such Securityholder's name and
address may appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to U. S. Bancorp, 000 X.X. Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx 00000, Attention: Secretary, facsimile no.: (000) 000-0000.
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.
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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 First
National Bank of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000, attention: Corporate Trust Services Division, (b) with
respect to the Delaware Trustee, to First Chicago Delaware Inc., 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
"Attention: Administrative Trustees of U. S. Bancorp Capital I." 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 one of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceedings 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 Application of Trust Indenture Act.
(a) The Trust Indenture Act shall apply as a matter of contract to this
Trust Agreement for purposes of interpretation, construction and defining the
rights and obligations hereunder.
(b) The Property Trustee shall be the only Trustee which is deemed a
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 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 ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
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U. S. BANCORP
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By /s/ X. Xxxxxx
Name: X. Xxxxxx
Title: Vice President
FIRST CHICAGO DELAWARE INC., as
Delaware Trustee
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX,
as Administrative Trustee
/s/ Xxxxxxx X. Xxxxx
XXXXXXX X. XXXXX,
as Administrative Trustee
EXHIBITS OMITTED
Exhibit A Declaration of Trust and Certificate of Trust
Exhibit B Letter of Representations
Exhibit C Form of Capital Security Certificate
Exhibit D Form of Common Security Certificate
Exhibit E Agreement as to Expenses and Liabilities
Exhibit F Rule 144A Capital Securities Legend
Exhibit G Rule 144A Securities Certificate
Exhibit H Unrestricted Securities Certificate
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