Exhibit 2.a.(i)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
MANDATORY COMMON EXCHANGE TRUST
Dated as of September 11, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.................................................. 1
ARTICLE II TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES;
ADMINISTRATION............................................... 6
SECTION 2.1 Declaration of Trust; Purposes of
the Trust.................................................... 6
SECTION 2.2 General Powers and Duties of the
Trustees..................................................... 6
SECTION 2.3 Portfolio Acquisition........................................ 8
SECTION 2.4 Portfolio Administration..................................... 9
SECTION 2.5 Manner of Sales.............................................. 12
SECTION 2.6 Limitations on Trustees' Powers.............................. 12
ARTICLE III ACCOUNTS AND PAYMENTS....................................... 13
SECTION 3.1 The Trust Account........................................... 13
SECTION 3.2 Payment of Fees and Expenses................................ 14
SECTION 3.3 Distributions to Holders.................................... 14
SECTION 3.4 Segregation................................................. 14
SECTION 3.5 Investments................................................. 14
ARTICLE IV REDEMPTION.................................................. 15
SECTION 4.1 Redemption.................................................. 15
ARTICLE V ISSUANCE OF CERTIFICATES; REGISTRY;
TRANSFER OF TIMES........................................... 15
SECTION 5.1 Form of Certificate......................................... 15
SECTION 5.2 Transfer of Times; Issuance,
Transfer and Interchange of
Certificates................................................ 16
SECTION 5.3 Replacement of Certificates................................. 17
ARTICLE VI ISSUANCE OF THE CONTRACT.................................... 18
SECTION 6.1 Execution of the Contract................................... 18
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ARTICLE VII TRUSTEES.................................................... 18
SECTION 7.1 Trustees.................................................... 18
SECTION 7.2 Vacancies................................................... 18
SECTION 7.3 Powers...................................................... 19
SECTION 7.4 Meetings.................................................... 19
SECTION 7.5 Resignation and removal..................................... 20
SECTION 7.6 Liability................................................... 20
SECTION 7.7 Compensation................................................ 21
ARTICLE VIII MISCELLANEOUS............................................... 21
SECTION 8.1 Meetings of Holders......................................... 21
SECTION 8.2 Books and Records; Reports.................................. 22
SECTION 8.3 Termination................................................. 23
SECTION 8.4 Amendment and Waiver........................................ 24
SECTION 8.5 Accountants................................................. 26
SECTION 8.6 Nature of Holder's Interest................................. 27
SECTION 8.7 Delaware Law to Govern...................................... 27
SECTION 8.8 Notices..................................................... 27
SECTION 8.9 Severability................................................ 28
SECTION 8.10 Counterparts................................................ 28
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TRUST AGREEMENT
This Trust Agreement, dated as of _______, 1997 (the "Trust
Agreement"), by and between Bear, Xxxxxxx & Co. Inc., as sponsor (the
"Sponsor"), and Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx, III and Xxxxx X. X'Xxxxx,
as trustees (the "Trustees"), constituting the Mandatory Common Exchange Trust
(the "Trust") .
W I T N E S S E T H:
WHEREAS, Xxxxxx X. Xxxxx, as sole trustee, had previously
filed in the State of Delaware a Certificate of Trust dated October 4, 1996 (the
"Trust Certificate"), creating Mandatory Common Exchange Trust; and
WHEREAS, the parties hereto desire to create the TIMES Trust
Agreement;
NOW, THEREFORE, the parties hereto agree to the provisions set
forth herein.
ARTICLE I
DEFINITIONS
Whenever used in this Trust Agreement, the following words and
phrases shall have the meanings listed below. Any reference to any agreement
shall be a reference to such agreement as supplemented or amended from time to
time.
"ACCELERATION AMOUNT NOTICE" - An Acceleration Amount Notice
as defined in the Contract.
"ACCELERATION VALUE" - The Acceleration Value as defined in
the Contract.
"ADMINISTRATION AGREEMENT" - The Administration Agreement,
dated as of the date hereof, between the Administrator and the Trustees, and any
substitute agreement therefor entered into pursuant to Section 2.2(a) hereof.
"ADMINISTRATOR" - The Bank of New York or its successor as
permitted under [Section 6.1] of the
Administration Agreement or appointed pursuant to Section 2.2(a) hereof.
"AGGREGATE ACCELERATION VALUE" - The Aggregate Acceleration
Value as defined in the Contract.
"BUSINESS DAY" - A day on which the American Stock Exchange,
Inc. is open for trading that is not a day on which banks in The City of New
York are authorized or obligated by law to close.
"CASH SETTLEMENT ALTERNATIVE" - The Cash Settlement
Alternative as defined in the Contract.
"CERTIFICATE" - Any certificate evidencing the ownership of
TIMES substantially in the form of Exhibit A hereto.
"CODE" - The Internal Revenue Code of 1986, as amended from
time to time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"COLLATERAL AGENT" - The Bank of New York or its successor as
permitted under the Collateral Agreement.
"COLLATERAL AGREEMENT" - The Collateral Agreement between the
Collateral Agent and the Seller, securing the Seller's obligations under the
Contract, substantially in the form of Exhibit B hereto.
"COLLATERAL EVENT OF DEFAULT" - A Collateral Event of Default
as defined in the Contract.
"COMMENCEMENT DATE" - The day on which the Underwriting
Agreement is executed.
"COMMISSION" - The United States Securities and Exchange
Commission.
"COMMON STOCK" - Common Stock, no par value, of FirstPlus
Financial, Inc.
"COMPANY" - FIRSTPLUS Financial, Inc., a Nevada corporation.
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"CONTRACT" - The forward purchase contract entered into by the
Trustees, the Seller and the other parties thereto, substantially in the form of
Exhibit C hereto.
"CUSTODIAN" - The Bank of New York or its successor as
permitted under [paragraph 11] of the Custodian Agreement or appointed pursuant
to Section 2.2(a) hereof.
"CUSTODIAN AGREEMENT" - The Custodian Agreement, dated as of
the date hereof, between the Custodian and the Trustees, and any substitute
agreement therefor entered into pursuant to Section 2.2(a) hereof.
"DEPOSITARY" - The Depository Trust Company, or
any successor thereto.
"DISTRIBUTION DATE" - Each ________, ________, ________ and
________ of each year commencing ________, 1997, to and including ________ __,
____ or if any such date is not a Business Day, then the first Business Day
thereafter.
"EXCESS PURCHASE PAYMENT" - Excess Purchase Payment as defined
under the Contract.
"EXCHANGE DATE" - ________ __, ____.
"EXCHANGE RATE" - The Exchange Rate as defined in the
Contract.
"FIRM PURCHASE PRICE" - The Firm Purchase Price as defined in
the Contract.
"FIRST TIME OF DELIVERY" - The First Time of Delivery as
defined in the Underwriting Agreement.
"HOLDER" - The registered owner of any TIMES as recorded on
the books of the Paying Agent.
"INDEPENDENT DEALERS" - Independent Dealers as defined in the
Contract.
"INDEMNITY AGREEMENT" - The Fund Indemnity Agreement dated as
of the date hereof between the
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Trustees and the Sponsor substantially in the form of Exhibit D hereto.
"INVESTMENT COMPANY ACT" - The Investment Company Act of 1940,
as amended from time to time; each reference herein to any section of such Act
or any rule or regulation thereunder shall constitute a reference to any
successor provision thereto.
"MANAGING TRUSTEE" - The Trustee designated the Managing
Trustee by resolution of the Trustees.
"MANDATORY EXCHANGE" - The delivery by the Trustees to the
Holders of Shares (or, if the seller elects the Cash Settlement Alternative
under the Contract, the amount in cash specified in the Contract as payable in
respect thereof) in mandatory exchange for the TIMES on the Exchange Date.
"MARKETABLE SECURITIES" - Marketable Securities as defined in
the Contract.
"PARTICIPANT" - A Person having a book-entry only system
account with the Depositary.
"PAYING AGENT" - The Bank of New York or its successor as
permitted under Section 6.6 of the Paying Agent Agreement or appointed pursuant
to Section 2.2(a) hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent Agreement, dated
as of the date hereof, between the Paying Agent and the Trustees, and any
substitute agreement therefor entered into pursuant to Section 2.2(a) hereof.
"PERSON" - An individual, a partnership, a corporation, a
trust, an unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"PROSPECTUS" - The prospectus relating to the Trust
constituting a part of the Registration Statement, as first filed with the
Commission pursuant to Rule 497(b) or (h) under the Securities Act, and as
subsequently amended or supplemented by the Trust.
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"QUARTERLY DISTRIBUTION" - $______ per TIMES paid to each
Holder on each Distribution Date.
"RECORD DATE" - Each ________, ________, ________, and
________ of each year commencing ________, 1997.
"REFERENCE MARKET PRICE" - Reference Market Price as defined
in the Contract.
"REGISTRATION STATEMENT" - Registration Statement on Form N-2
(Registration No. 333-15927, 811- 7847) of the Trust, as amended.
"REORGANIZATION EVENT" - A Reorganization Event as defined in
the Contract.
"SECOND TIME OF DELIVERY" - The Second Time of Delivery as
defined in the Underwriting Agreement.
"SECURITIES ACT" - The Securities Act of 1933, as amended from
time to time.
"SELLER" - The person named as Seller in the Contract.
"SHARES" - Shares of Common Stock to be exchanged by the
Trustees for the TIMES on the Exchange Date.
"TEMPORARY INVESTMENTS" - U.S. Treasury securities and any
other cash held by the Trust in direct short-term U.S. government obligations,
as specified from time to time by the Trustees or through standing instructions
from the Trustees to the Administrator or the Paying Agent.
"TIMES" - $.___ Trust Issued Mandatory Exchange Security of
the Trust evidencing a Holder's undivided interest in the Trust and right to
receive a pro rata distribution upon liquidation of the Trust Estate.
"TRANSFER AGENT AND REGISTRAR" - The Bank of New York, as
Transfer Agent and Registrar for the Common Stock.
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"TREASURY SECURITIES" - The meaning specified in Section
2.3(b) hereof.
"TRUST ACCOUNT" - The account created pursuant to Section 3.1
hereof.
"TRUST ESTATE" - The Contract and the Treasury Securities held
at any time by the Trust, together with any Temporary Investments held at any
time pursuant to Section 3.5 hereof, and any proceeds thereof or therefrom and
any other moneys held at any time in the Trust Account.
"UNDERWRITERS" - The Underwriters named in the Underwriting
Agreement.
"UNDERWRITING AGREEMENT" - The Underwriting Agreement as
described in the Prospectus.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 DECLARATION OF TRUST; PURPOSES OF THE TRUST. The
Sponsor hereby creates the Trust in order that it may acquire the Treasury
Securities, enter into the Contract, issue and sell to the Sponsor and the
Underwriters the TIMES, hold the Trust Estate in trust for the use and benefit
of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Sponsor has heretofore deposited with the
Trustees the sum of $10 to accept and hold in trust hereunder until the issuance
and sale of the TIMES to the Underwriters, whereupon such sum shall be donated
to an organization satisfying the requirements of Section 170(c)(2) of the Code
selected by unanimous consent of the Trustees.
SECTION 2.2 GENERAL POWERS AND DUTIES OF THE TRUSTEES. In
furtherance of the provisions of Section
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2.1 hereof, the Sponsor authorizes and directs the Trustees:
(a) to enter into and perform (and, in accordance
with Section 8.4(a) hereof, amend), the Contract, the Collateral
Agreement, the Underwriting Agreement, the Indemnity Agreement, the
Custodian Agreement, the Administration Agreement and the Paying Agent
Agreement and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce
all rights and remedies of the Trust under each of such agreements; and
if any of the Custodian Agreement, the Administration Agreement, the
Collateral Agreement and the Paying Agent Agreement terminates, or the
agent of the Trust thereunder resigns or is discharged, to appoint a
substitute agent and enter into a new agreement with such substitute
agent containing provisions substantially similar to those contained in
the agreement being terminated; provided that in any such new agreement
(i) the Custodian and the Paying Agent shall each be a commercial bank
or trust company organized and existing under the laws of the United
States of America or any state therein, shall have full trust powers
and shall have minimum capital, surplus and retained earnings of not
less than $100,000,000; and (ii) the Administrator and the Collateral
Agent shall each be a reputable financial institution qualified in all
respects to carry out its obligations under the Administration
Agreement or the Collateral Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the Trust
to the Trust Account and to make payments out of the Trust Account as
set forth in Article III hereof;
(c) to issue and sell to the Underwriters an
aggregate of up to 2,205,000 TIMES (including those TIMES subject to
the over-allotment option of the Underwriters provided for in the
Underwriting Agreement) pursuant to the Underwriting Agreement and as
contemplated by the Prospectus; provided, however, that subsequent to
the determination of the
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public offering price per TIMES and related underwriting discount for
the TIMES to be sold to the Underwriters but prior to the sale of the
TIMES to the Underwriters, the TIMES originally issued to the Sponsor
shall be split into a greater number of TIMES so that immediately
following such split the value of each TIMES held by the Sponsor will
equal the aforesaid public offering price less the related underwriting
discount;
(d) to select independent public accountants and,
subject to the provisions of Section 8.5 hereof, to engage such
independent public accountants;
(e) to engage legal counsel and, to the extent
required by Section 2.4 hereof, to engage professional advisors and pay
reasonable compensation thereto;
(f) to defend any action commenced against the
Trustees or the Trust and to prosecute any action which the Trustees
deem necessary to protect the Trust and the rights and interests of
Holders, and to pay the costs thereof;
(g) to arrange for the bonding of officers and
employees of the Trust as required by Section 17(g) of the Investment
Company Act and the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties
hereunder as contemplated by the Custodian Agreement, the Paying Agent
Agreement and the Administration Agreement, to the extent permitted by
applicable law; and
(i) to adopt and amend bylaws, and take any and all
such other actions as necessary or advisable to carry out the purposes
of the Trust, subject to the provisions hereof and applicable law,
including, without limitation, the Investment Company Act.
SECTION 2.3 PORTFOLIO ACQUISITION. In furtherance of the
provisions of Section 2.1 hereof, the
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Sponsor further specifically authorizes and directs the Trustees:
(a) to enter into the Contract with respect to the
Shares subject thereto with the Seller on the Commencement Date for
settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contracts, to pay the
Firm Purchase Price and the Additional Purchase Price, if any,
thereunder with the proceeds of the sale of the TIMES, net of
underwriting commissions and other expenses payable in connection with
the public offering of the TIMES as described in Section 3.2 hereof and
net of the purchase price paid for the Treasury Securities as provided
in paragraph (b) below; and, subject to the adjustments and exceptions
set forth in the Contract, the Contract shall entitle the Trust to
receive from the Seller on the Exchange Date the Shares subject thereto
(or, if the Seller elects the Cash Settlement Alternative under the
Contract, the amount in cash specified in the Contract in respect
thereof) so that the Trust may execute the Exchange with the Holders;
and
(b) to purchase for settlement at the First Time of
Delivery, and at the Second Time of Delivery, as appropriate, with the
proceeds of the sale the TIMES, net of underwriting commissions and
other expenses payable in connection with the public offering of the
TIMES, U.S. Treasury securities from such brokers or dealers as the
Trustees shall designate in writing to the Administrator having the
terms set forth on Schedule I hereto ("Treasury Securities").
SECTION 2.4 PORTFOLIO ADMINISTRATION. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) DETERMINATION OF DILUTION OR MERGER ADJUSTMENTS.
Upon receipt of any notice pursuant to Section 5.4(b) of the Contract
of an event requiring an adjustment to the Exchange Rate, or upon
otherwise acquiring knowledge of such an event, to calculate the
required adjustment and furnish notice
9
thereof to the Collateral Agent and the Seller, or to request from the
Seller such further information as may be necessary to calculate or
effect the required adjustment;
(b) SELECTION OF INDEPENDENT INVESTMENT BANK. Upon
receipt of notice of (i) the occurrence of a Reorganization Event in
which property other than cash or Marketable Securities is to be
received in respect of the Common Stock as described in Section 6.2 of
the Contract or (ii) an Excess Purchase Payment in which the Company
has paid or will pay consideration other than cash as described in
Section 6.1(d) of the Contract, to select and retain a nationally
recognized investment banking firm to determine the market value of
such property as provided in the Contract, and to deliver to the Seller
notice pursuant to Section 8.1 of the Contract identifying the firm
proposed to be selected and retained, and to consult with the Seller on
such selection and retention as provided in such Section 8.1;
(c) ACCELERATION. Upon receipt of any notice pursuant
to Section 5.4(a) of the Contract or pursuant to Section 6(a) of the
Collateral Agreement that a Collateral Event of Default has occurred,
or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute
Acceleration Value and Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract,
all as described in Article VII of the Contract;
(d) DETERMINATION OF EXCHANGE DATE AMOUNTS. To
calculate, on the Exchange Date, the number of Shares (or, if the
Seller elects the Cash Settlement Alternative under the Contract, the
amount in cash) required to be delivered by the Seller under Section
1.1 of the Contract or, if a Reorganization Event shall have occurred,
the amount of cash required to be delivered by the Seller, and the
number of Marketable Securities permitted to be delivered by the Seller
in lieu of all or a portion of such cash, all as provided in Section
6.2 of the Contract; and to furnish Notice of the amounts so
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determined to the Collateral Agent and the
Seller;
(e) DISTRIBUTION OF EXCHANGE CONSIDERATION. Unless a
Reorganization Event shall have occurred (in which event distribution
of proceeds shall be governed by Section 8.3 below) or the Seller
elects the Cash Settlement Alternative under the Contract (in which
event the cash received in respect thereof shall be distributed pro
rata to the Holders of TIMES):
(i) DETERMINATION OF FRACTIONAL SHARES. To
determine, on the Exchange Date: (A) for each Holder of TIMES,
such Holder's pro rata share of the total number of Shares
delivered to the Trustees under the Contract on the Exchange
Date; and (B) the number of fractional Shares allocable to
each Holder (including, in the case of the Depositary,
fractional shares allocable to beneficial owners of TIMES who
own through Participants) and in the aggregate;
(ii) CASH FOR FRACTIONAL SHARES. To sell, in
the Principal market therefor, on the Exchange Date, a number
of Shares equal to the aggregate number of fractional Shares
determined pursuant to clause (i) (B) above, rounded down to
the nearest integral number; and to determine the difference
between (A) the aggregate proceeds of such sale (net of any
brokerage or related expenses) and (B) the product of the
number of Shares so sold and the Reference Market Price; and,
in accordance with the Indemnity Agreement, to pay such
difference, if positive, to Bear, Xxxxxxx & Co. Inc., or to
request payment of such difference, if negative, from Bear,
Xxxxxxx & Co. Inc.;
(iii) DELIVERY OF SHARES. To deliver the
remaining Shares to the Transfer Agent and Registrar on the
Exchange Date, with instructions that such Shares be
re-registered and re-issued as follows: (A) for and in the
name of each Holder (other than the Depositary) who holds
TIMES in definitive form,
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the Transfer Agent and Registrar shall be instructed to issue
definitive certificates representing a number of Shares equal
to such Holder's pro rata share of the total delivered to the
Trustees under the Contract, rounded down to the nearest
integral number; (B) the Transfer Agent and Registrar Shares
shall be instructed to transfer all remaining Shares to the
account of the Custodian held through the Depositary, who
shall then be instructed to transfer and credit such Shares to
each Participant who holds TIMES, with each Participant
receiving its pro rata share of the total Shares delivered to
the Trust on the Exchange Date, reduced by the aggregate
fractional shares allocable to such Participant;
(iv) DISTRIBUTION OF CASH IN RESPECT OF
FRACTIONAL SHARES. To distribute to each Holder of TIMES cash
in the amount of: (A) the fraction of a Share, if any,
allocable to such Holder as determined pursuant to clause (i)
(B) above; times (B) the Reference Market Price; and
(v) RECORD DATE. The distributions described
in this paragraph (e) shall be made to Holders of record as of
the close of business on the Business Day preceding the
Exchange Date.
SECTION 2.5 MANNER OF SALES. Any sale of Trust property
permitted under Section 8.3(c) hereof shall be made through such executing
brokers or to such dealers as the Trustees, seeking best price and execution for
the Trust, shall designate in writing to the Paying Agent, taking into account
such factors as price, commission, size of order, difficulty of execution and
brokerage skill required.
SECTION 2.6 LIMITATIONS ON TRUSTEES' POWERS. The Trustees are
not permitted:
(a) to purchase or hold any securities or instruments
except for the Shares, the Contract, the Treasury Securities, the
Temporary Investments
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contemplated by Section 3.5 hereof and, in the event of a
Reorganization Event, Marketable Securities;
(b) to dispose of the Contract prior to the Exchange
Date;
(c) to issue any securities or instruments except for
the TIMES, or to issue any TIMES other than the TIMES sold to the
Sponsor and the TIMES to be sold pursuant to the Underwriting Agreement
and until such TIMES have been so purchased and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or
commodities contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the
Administrator, the Paying Agent or the Custodian to take any action,
that would vary the investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or otherwise take any action
or direct or permit any action to be taken that would or could cause
the Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees shall, upon
issuance of the TIMES, establish with the Paying Agent an account to be called
the "Trust Account". All moneys received by the Trustees in respect of the
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Contract, the Treasury Securities and any Temporary Investments held pursuant to
Section 3.5 hereof, all moneys received from the sale of the TIMES to the
Sponsor, and any proceeds from the sale to the Underwriters of the TIMES after
the purchase of the Contract and the Treasury Securities and the payment of the
Trust's expenses described in Section 3.2 hereof shall be credited to the Trust
Account.
SECTION 3.2 PAYMENT OF FEES AND EXPENSES. The Administrator is
authorized to pay from the Trust Account out of the net proceeds of the sale of
the TIMES, the fees and expenses of the Trust incurred in connection with the
offering of the TIMES and the costs and expenses incurred in the organization of
the Trust.
SECTION 3.3 DISTRIBUTIONS TO HOLDERS. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly Distribution computed as of the
close of business on such Distribution Date.
SECTION 3.4 SEGREGATION. All moneys and other assets deposited
or received by the Trustees hereunder shall be held by them in trust as part of
the Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Trust Agreement, and the Trustees shall
handle such moneys and other assets in such manner as shall constitute the
segregation and holding in trust within the meaning of the Investment Company
Act.
SECTION 3.5 INVESTMENTS. To the extent necessary to enable the
Paying Agent to make the next succeeding Quarterly Distribution, any moneys
deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose
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of any Temporary Investment prior to the maturity thereof, or to acquire
additional Temporary Investments. The Paying Agent shall hold any Temporary
Investments to its maturity and shall apply the proceeds thereof upon maturity
to the payment of the next succeeding Quarterly Distribution. All such Temporary
Investments shall be selected from time to time by the Trustees or pursuant to
standing instructions from the Trustees to the Administrator, and the
Administrator and/or Paying Agent shall have no liability to the Trust or any
Holder or any other Person with respect to any such Temporary Investment. Any
interest or other income received on any moneys in the Trust Account shall, upon
receipt thereof, be deposited into the Trust Account. Notwithstanding the
foregoing, not more than 5% of the assets of the Trust may be held at any time
in the form of cash and Temporary Investments, and the Trustees shall distribute
cash, or liquidate Temporary Investments and distribute the proceeds thereof,
if, when and to the extent needed to maintain compliance with the foregoing
restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall have no right or
obligation to redeem TIMES.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY;
TRANSFER OF TIMES
SECTION 5.1 FORM OF CERTIFICATE. Each Certificate evidencing
TIMES shall be countersigned manually or in facsimile by the Managing Trustee
and executed manually by the Paying Agent in substantially the form of Exhibit A
hereto with the blanks appropriately filled in, shall be dated the date of
execution and delivery by the Paying Agent and shall represent a fractional
undivided interest in the Trust, the numerator of which fraction shall be the
number of TIMES set forth on the face of such Certificate and the denominator of
which shall be the total number of TIMES
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outstanding at that time. All TIMES shall be issued in registered form and shall
be numbered serially.
Pending the preparation of definitive Certificates, the
Trustees may execute and the Paying Agent shall authenticate and deliver
temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). Temporary
Certificates shall be issuable as registered Certificates substantially in the
form of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the Paying Agent. Every
temporary Certificate shall be executed by the Managing Trustee and be
authenticated by the Paying Agent upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Certificates. Without
unreasonable delay the Managing Trustee shall execute and shall furnish
definitive Certificates and thereupon temporary Certificates may be surrendered
in exchange therefor without charge at each office or agency of the Paying Agent
and the Paying Agent shall authenticate and deliver in exchange for such
temporary Certificates definitive Certificates for a like aggregate number of
TIMES. Until so exchanged, the temporary Certificates shall be entitled to the
same benefits hereunder as definitive Certificates.
SECTION 5.2 TRANSFER OF TIMES; ISSUANCE, TRANSFER AND
INTERCHANGE OF CERTIFICATES. TIMES may be transferred by the Holder thereof by
presentation and surrender of properly endorsed Certificates at the office of
the Paying Agent, accompanied by such documents executed by the Holder or his
authorized attorney as the Paying Agent deems necessary to evidence the
authority of the person making the transfer. Certificates issued pursuant to
this Trust Agreement are interchangeable for one or more other Certificates in
an equal aggregate number of TIMES and all Certificates issued as may be
requested by the Holder and deemed appropriate by the Paying Agent shall be
issued in denominations of one TIMES or any multiple thereof. The Paying Agent
may deem and treat the person in whose name any TIMES shall be registered upon
the books of the Paying Agent as the owner of such TIMES for all purposes
hereunder and the
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Paying Agent shall not be affected by any notice to the contrary. The transfer
books maintained by the Paying Agent for the purposes of this Section 5.2 hereof
shall include the name and address of the record owners of the TIMES and shall
be closed in connection with the termination of the Trust pursuant to Section
8.3 hereof.
A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Paying Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
All Certificates cancelled pursuant to this Trust Agreement
may be voided by the Paying Agent in accordance with the usual practice of the
Paying Agent or in accordance with the instructions of the Trustees; provided,
however, that the Paying Agent shall not be required to destroy cancelled
Certificates.
The Paying Agent may adopt other reasonable rules and
regulations for the registration, transfer and tender of TIMES as it may, in its
discretion, deem necessary.
SECTION 5.3 REPLACEMENT OF CERTIFICATES. In case any
Certificate shall become mutilated or be destroyed, stolen or lost, the Paying
Agent shall execute and deliver a new Certificate in exchange and substitution
therefor upon the Holder's furnishing the Paying Agent with proper
identification and satisfactory indemnity, complying with such other reasonable
regulations and conditions as the Paying Agent may prescribe and paying such
expenses and charges, including any bonding fee, as the Paying Agent may incur
or reasonably impose; provided that if the Trust has terminated or is in the
process of terminating, the Paying Agent, in lieu of issuing such new
Certificate, may, upon the terms and conditions set forth herein, make the
distributions set forth in Section 8.3(c) hereof. Any mutilated Certificate
shall be duly surrendered and cancelled before any duplicate Certificate shall
be issued in exchange and substitution therefor. Upon issuance of any duplicate
Certificate pursuant to this Section 5.3 hereof, the original Certificate
claimed to
17
have been lost, stolen or destroyed shall become null and void and of no effect,
and any bona fide purchaser thereof shall have only such rights as are afforded
under Article 8 of the Uniform Commercial Code to a Holder presenting a
Certificate for transfer in the case of an overissue.
ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 Execution of the Contract. The Contract shall be
countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Seller and shall be dated the date of execution and delivery by
the Seller.
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees. The Trust shall have three Trustees who
shall initially be elected by the Sponsor. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not cumulate
their votes in the election of Trustees. Each Trustee shall not be considered to
have qualified for the office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his consent by executing this
Trust Agreement or a supplement hereto.
SECTION 7.2 Vacancies. Any vacancy in the office of a Trustee
may be filled in compliance with Sections 10 and 16 of the Investment Company
Act by the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within
18
sixty days (unless the Commission by order shall extend such period) a meeting
of Holders for the purpose of electing Trustees in compliance with Sections 10
and 16 of the Investment Company Act. Until a vacancy in the office of any
Trustee is filled as provided above, the remaining Trustees in office,
regardless of their number, shall have the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this Trust
Agreement. Election shall be by the affirmative vote of Holders of a majority of
the TIMES entitled to vote present in person or by proxy at a special meeting of
Holders called for the purpose of electing any Trustee. Each individual Trustee
shall be at least 21 years of age and shall not be under any legal disability.
No Trustee who is an "interested person", as defined in the Investment Company
Act, may assume office if it would cause the composition of the Trustees of the
Trust not to be in compliance with the percentage limitations on interested
persons in Section 10 of the Investment Company Act. Trustees need not be
Holders. Notice of the appointment or election of a successor Trustee shall be
mailed promptly after acceptance of such appointment by the successor Trustee to
each Holder.
SECTION 7.3 POWERS. The Trust will be managed solely by the
Trustees, who will, subject to the provisions of Article II hereof, have
complete and exclusive control over the management, conduct and operation of the
Trust's business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
SECTION 7.4 MEETINGS. Meetings of the Trustees shall be held
from time to time upon the call of any Trustee on not less than 48 hours' notice
(which may
19
be waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any Trustee may resign
and be discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding TIMES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
SECTION 7.6 LIABILITY. The Trustees shall not be liable to the
Trust or any Holder for any action taken or for refraining from taking any
action except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Trust Agreement or for
the due execution hereof by any other Person, or for or in respect of the
validity or sufficiency of TIMES or certificates representing TIMES and shall in
no event assume or incur any liability, duty or obligation to any Holder or to
any other Person, other than as expressly
20
provided for herein. The Trustees may employ agents, attorneys, administrators,
accountants and auditors, and shall not be answerable for the default or
misconduct of any such Persons if such Persons shall have been selected with
reasonable care. Action in good faith may include action taken in good faith in
accordance with an opinion of counsel. In no event shall any Trustee be
personally liable for any expenses with respect to the Trust. Each Trustee shall
be indemnified from the Trust Account with respect to any claim, liability, loss
or expense incurred in acting as Trustee of the Trust, including the costs and
expenses of the defense against any such claim or liability, except in the case
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties of his office.
SECTION 7.7 COMPENSATION. Each Trustee, other than a Trustee
who is a director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $14,400 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees shall not hold
annual or regular meetings of Holders except as set forth herein. A special
meeting may be called at any time by the Trustees or upon petition of Holders of
not less than 51% of the TIMES outstanding (unless substantially the same matter
was voted on during the preceding 12 months), and shall be called as provided in
Section 7.2 hereof (or as otherwise required by the Investment Company Act and
the rules and regulations thereunder, including, without limitation, when
requested by the Holders of not less than 10% of the TIMES outstanding for the
purposes of voting upon the question
21
of the removal of any Trustee or Trustees). The Trustees shall establish, and
notify the Holders in writing of, the record date for each such meeting which
shall be not less than 10 nor more than 50 days before the meeting date. Holders
at the close of business on the record date will be entitled to vote at the
meeting. The Administrator shall, as soon as possible after any such record date
(or prior to such record date if appropriate), mail by first class mail to each
Holder a notice of meeting and a proxy statement and form of proxy in the form
approved by the Trustees and complying with the Investment Company Act and the
rules and regulations thereunder. Except as otherwise specified herein or in any
provision of the Investment Company Act and the rules and regulations
thereunder, any action may be taken by vote of Holders of a majority of the
TIMES outstanding present in person or by proxy if Holders of a majority of
TIMES outstanding on the record date are so represented. Each TIMES shall have
one vote and may be voted in person or by duly executed proxy. Any proxy may be
revoked by notice in writing, by a subsequently dated proxy or by voting in
person at the meeting, and no proxy shall be valid after eleven months following
the date of its execution.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a) The Trustees shall
keep a certified copy or duplicate original of this Trust Agreement on file at
the office of the Trust and the office of the Administrator available for
inspection at all reasonable times during its usual business hours by any
Holder. The Trustees shall keep proper books of record and account for all the
transactions under this Trust Agreement at the office of the Trust and the
office of the Administrator, and such books and records shall be open to
inspection by any Holder at all reasonable times during usual business hours.
The Trustees shall retain all books and records in compliance with Section 31 of
the Investment Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent
shall set forth, either in the instruments by means of which payment is
made or in a separate statement, the amount being paid from the Trust
Account expressed as a dollar amount per TIMES and the other
information required under Section 19 of the Investment Company Act and
the rules and
22
regulations thereunder. The Trustees shall prepare and file or
distribute reports as required by Section 30 of the Investment Company
Act and the rules and regulations thereunder. The Trustees shall
prepare and file such reports as may from time to time be required to
be filed or distributed to Holders under any applicable state or
Federal statute or rule or regulation thereunder, and shall file such
tax returns as may from time to time be required under any applicable
state or Federal statute or rule or regulation thereunder. One of the
Trustees shall be designated by resolution of the Trustees to make the
filings and give the notices required by Rule 17g-1 under the
Investment Company Act.
(c) In calculating the net asset value of the Trust
as required by the Investment Company Act, (i) the Treasury Securities
will be valued at the mean between the last current bid and asked
prices or, if quotations are not available, as determined in good faith
by the Trustees, (ii) short-term investments having a maturity of 60
days or less will be valued at cost with accrued interest or discount
earned included in interest receivable and (iii) the Contract will be
valued at the mean of the bid prices received by the Administrator from
at least three independent broker-dealer firms unaffiliated with the
Trust to be named by the Trustees who are in the business of making
bids on financial instruments similar to the Contract and with terms
comparable thereto.
SECTION 8.3 TERMINATION. (a) This Trust Agreement and the
Trust created hereby shall terminate upon the earliest of (i) the date 90 days
after the execution of this Trust Agreement if (x) the TIMES have not
theretofore been issued or (y) the net worth of the Trust is not at least
$100,000 at such time, (ii) the date of the repayment, sale or other
disposition, as the case may be, of all of the Contract, the Treasury Securities
and any other securities held hereunder, (iii) the date 10 Business Days after
the Exchange Date (or, if the Contracts shall be accelerated pursuant to Article
VIII thereof, 10 Business Days after the date on which the Trust shall receive
the Shares then required to be delivered by the Seller, or the proceeds of any
sale of
23
collateral pursuant to Section 8(c) of the Collateral Agreement), and (iv) the
date which is 21 years less 91 days after the death of the last survivor of all
of the descendants of [NAME] living on the date hereof. The Trust is
irrevocable, the Sponsor has no right to withdraw any assets constituting a
portion of the Trust Estate, and the dissolution of the Sponsor shall not
operate to terminate the Trust. The death or incapacity of any Holder shall not
operate to terminate this Trust Agreement, nor entitle his legal representatives
or heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of the Trust, and shall not otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Written notice of any termination shall be sent
to Holders specifying the record date for any distribution to Holders
and the time of termination as determined by the Trustees, upon which
the books maintained by the Paying Agent pursuant to Section 5.2 hereof
shall be closed.
(c) For purposes of termination under Sections
8.3(a)(ii), (iii) and (iv) hereof, within five Business Days after such
termination, the Trustees shall, subject to any applicable provisions
of law, effect the sale of any remaining property of the Trust, and the
Paying Agent shall distribute pro rata as soon as practicable
thereafter to each Holder, upon surrender for cancellation of its
Certificates, its interest in the Trust Estate. Together with the
distribution to the Holders, the Trustees shall furnish the Holders
with a final statement as of the date of the distribution of the amount
distributable with respect to each TIMES.
SECTION 8.4 AMENDMENT AND WAIVER. (a) This Trust Agreement,
and any of the agreements referred to in Section 2.2(a) hereof, may be amended
from time to time by the Trustees for any purpose prior to the issuance and sale
to the Underwriters of the TIMES and thereafter without the consent of any of
the Holders (i) to cure any ambiguity or to correct or supplement any provision
contained herein or therein which may be defective or inconsistent with any
other provision contained herein or therein; (ii) to change any provision hereof
or thereof as may be required by applicable law or the Commission or
24
any successor governmental agency exercising similar authority; or (iii) to make
such other provisions in regard to matters or questions arising hereunder or
thereunder as shall not materially adversely affect the interests of the Holders
(as determined in good faith by the Trustees, who may rely on an opinion of
counsel).
(b) This Trust Agreement may also be amended from
time to time by the Trustees (or the performance of any of the
provisions of the Trust Agreement may be waived) with the consent by
the required vote of the Holders in accordance with Section 8.1 hereof;
provided that this Trust Agreement may not be amended (i) without the
consent by vote of the Holders of all TIMES then outstanding, so as to
increase the number of TIMES issuable hereunder above the number of
TIMES specified in Section 2.2(c) hereof or such lesser number as may
be outstanding at any time during the term of this Trust Agreement,
(ii) to reduce the interest in the Trust represented by TIMES without
the consent of the Holders of such TIMES, (iii) if such amendment is
prohibited by the Investment Company Act or other applicable law, (iv)
without the consent by vote of the Holders of all TIMES then
outstanding, if such amendment would effect a change in the voting
requirements set forth in Section 8.1 hereof or this Section 8.4, or
(v) without the consent by vote of the Holders of the lesser of (x) 67%
or more of the TIMES represented at a special meeting of Holders, if
more than 50% of the TIMES outstanding are represented at such meeting,
and (y) more than 50% of the TIMES outstanding, if such amendment would
effect a change in Section 2.1 or 2.6 hereof.
(c) Promptly after the execution of any amendment,
the Trustees shall furnish written notification of the substance of
such amendment to each Holder.
(d) Notwithstanding subsections (a) and (b) of this
Section 8.4 no amendment hereof shall permit the Trust, the Trustees,
the Administrator, the Paying Agent or the Custodian to take any action
or direct or permit any Person to take any action that (i) would vary
the investment of Holders within
25
the meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would
or could cause the Trust, or direct or permit any action to be taken
that would or could cause the Trust, not to be a "grantor trust" under
the Code.
SECTION 8.5 ACCOUNTANTS.
(a) The Trustees shall, in accordance with Section 30
of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having
securities registered on a national securities exchange are required to
file annually pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations issued thereunder.
The Trustees shall transmit to the Holders, at least semi-annually, the
reports required by Section 30(d) of the Investment Company Act and the
rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of
investments on the date of such balance sheet, a list showing the
amounts and values of such investments owned on the date of such
balance sheet, and a statement of income for the period covered by the
report. Financial statements contained in such annual reports shall be
accompanied by a certificate of independent public accounts based upon
an audit not less in scope or procedures than that which independent
public accountants would ordinarily make for the purpose of presenting
comprehensive and dependable financial statements and shall contain
such information as the Commission may prescribe. Each such report
shall state that such independent public accountants have verified
investments owned, either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants referred to in
subsection (a) above shall be selected at a meeting held within thirty
days before or after the beginning of the fiscal year by the vote, cast
in person, of a majority of the Trustees who are not "interested
persons" as defined in the Investment Company Act and such selection
shall be submitted for ratification at the first meeting of
26
Holders to be held as set forth in Section 8.1 hereof, and thereafter
as required by the Investment Company Act and the rules and regulations
thereunder. The employment of any independent public accountant for the
Trust shall be conditioned upon the right of the Holders by a vote of
the lesser of (i) 67% or more of the TIMES present at a special meeting
of Holders, if Holders of more than 50% of TIMES outstanding are
present or represented by proxy at such meeting or (ii) more than 50%
of the TIMES outstanding to terminate such employment at any time
without penalty.
(c) The foregoing provisions of this Section 8.5 are
in addition to any applicable requirements of the Investment Company
Act and the rules and regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. Each Holder holds at
any given time a beneficial interest in the Trust Estate, but does not have any
right to take title or possession of any portion of the Trust Estate. Each
Holder expressly waives any right he may have under any rule of law, or the
provisions of any statute, or otherwise, to require the Trustees at any time to
account, in any manner other than as expressly provided in this Trust Agreement,
for the Shares, the Contract, the Treasury Securities or other assets or moneys
from time to time received, held and applied by the Trustees hereunder. No
Holder shall have any right except as provided herein to control or determine
the operation and management of the Trust or the obligations of the parties
hereto. Nothing set forth herein or in the certificates representing TIMES shall
be construed to constitute the Holders from time to time as partners or members
of an association.
SECTION 8.7 DELAWARE LAW TO GOVERN. This Trust Agreement is
executed and delivered in the State of Delaware, and all laws or rules of
construction of the State of Delaware shall govern the rights of the parties
hereto and the Holders and the construction, validity and effect of the
provisions hereof.
SECTION 8.8 NOTICES. Any notice, demand, direction or
instruction to be given to the Sponsor hereunder shall be in writing and shall
be duly given if
27
mailed or delivered to Bear, Xxxxxxx & Co., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: ________, or at such other address as shall be specified by
the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
at Xxxxxxx & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
[___________] and to each Trustee at such Trustee's address set forth beneath
its signature below, or such other address as shall be specified to the other
parties hereto by such party in writing. Any notice to be given to a Holder
shall be duly given if mailed, first class postage prepaid, or by such other
substantially equivalent means as the Trustees may deem appropriate, or
delivered to such Holder at the address of such Holder appearing on the registry
of the Paying Agent.
SECTION 8.9 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
SECTION 8.10 COUNTERPARTS. This Trust Agreement may be
executed in counterparts, and as so executed will constitute one agreement,
binding on all of the parties hereto.
28
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed.
BEAR, XXXXXXX & CO. INC.
___________________________________________
Name:
Address:
TRUSTEES:
___________________________________________
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
___________________________________________
Name: Xxxxxxx X. Xxxxxx, III
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
___________________________________________
Name:
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
29
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal or interest
components of U.S. Treasury debt obligations.
TIMES Payment Date Aggregate Face Amount,
per
TIMES, Payable
at Payment Date
30
Exhibit A
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND. $___. TRUST
ISSUED MANDATORY EXCHANGE SECURITIES
MANDATORY COMMON EXCHANGE TRUST
CUSIP NO. 000000000
NO. _____ _______ SHARES
THIS CERTIFIES
THAT____________________________________________________________ IS THE RECORD
OWNER OF ____________________ $___ TRUST ISSUED MANDATORY EXCHANGE SECURITIES OF
FIRSTPLUS FINANCIAL, INC. MANDATORY COMMON EXCHANGE TRUST, CONSTITUTING
FRACTIONAL UNDIVIDED INTERESTS IN MANDATORY COMMON EXCHANGE TRUST, A TRUST
CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT TO A TRUST AGREEMENT
BETWEEN BEAR, XXXXXXX & CO. INC. AND THE TRUSTEES NAMED THEREIN. THIS
CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT TO WHICH THE HOLDER OF THIS CERTIFICATE BY
VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF WHICH TRUST
AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR AND PAYING
AGENT, THE BANK OF NEW YORK, 000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000. THIS
CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY THE REGISTERED OWNER IN
PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF THE PAYING AGENT UPON
SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR ACCOMPANIED BY A WRITTEN
INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE
FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES
AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY
THE PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING
TRUSTEE.
MANDATORY COMMON EXCHANGE TRUST
DATED: By______________________________
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK,
as Paying Agent
By________________________
Authorized Signature
